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August 11, 1999

 

Mr. Charles B. Smith
135 Marion Avenue
Wynantskill, NY 12180

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your
correspondence, unless otherwise indicated.

Dear Mr. Smith:

As you are aware, I have received a copy of a denial of a your request for records issued
by the Office of the Rensselaer County Attorney. Specifically, Assistant County Attorney
Stephen A. Pechenik wrote that:

"The County of Rensselaer declines your Freedom of Information Law request to
review copies of any and all job applications in the possession of Rensselaer County for those
employees currently holding the positions of District Attorney, Assistant District Attorney and
First Assistant District Attorney under the authority of the Mtr. of New York Veteran Police
Assoc., 61 N.Y. 2d 659."

From my perspective, portions of the records sought must be disclosed in accordance
with the following commentary.

First, I am mindful of the decision cited by the Assistant County Attorney. In that case,
the issue involved a request for "the names and addresses of all retirees of the New York City
Police Department currently receiving pensions and annuities" (id. 660), and the Court of
Appeals reversed the lower court's determination based on an amendment to the Freedom of
Information Law that had recently been enacted. That provision, §89(7), states in relevant part
that:

"Nothing in this article shall require the disclosure of the home address of an
officer or employee, former officer or employee, or of a retiree of a public employees' retirement
system; nor shall anything in this article require the disclosure of the name or home address of a
beneficiary of a public employees's retirement system or of an applicant for appointment to
public employment..."

The decision quoted from the language of the amendment pertinent to records at issue and then
also referred to "an application for appointment to public employment" (id., 661). The statutory
language involves the name of an applicant for public employment, not an application, and it is
my view, particularly in the context of the decision, that the use of the term application was a
typographical error or oversight. The request and the records sought pertained to neither
applicants nor applications, and the Court did not focus on those kinds of records. In short, I do
not believe that the County may justifiably rely on New York Veteran Police Association as a
basis for a denial of access.

Second, that is especially so in light of a decision dealing with the kinds of records that
you requested that was recently unanimously affirmed by the Appellate Division, Kwasnik v.
City of New York (Appellate Division, Second Department, NYLJ, June 21, 1999).

By way of background, as you are likely aware, the Freedom of Information Law is based
upon a presumption of access. Stated differently, all records of an agency are available, except to
the extent that records or portions thereof fall within one or more grounds for denial appearing in
§87(2)(a) through (i) of the Law. Relevant to the matter is §87(2)(b), which states that an agency
may withhold records to the extent that disclosure would constitute "an unwarranted invasion of
personal privacy."

Based on the judicial interpretation of the Freedom of Information Law, it is clear that
public officers and employees enjoy a lesser degree of privacy than others, for it has been found
in various contexts that those individuals are required to be more accountable than others. The
courts have found that, as a general rule, records that are relevant to the performance of the
official duties of a public officer or employee are available, for disclosure in such instances
would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g.,
Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe,
59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838
(1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty.,
March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of
Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138
AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty.,
NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the
extent that items relating to public officers or employees are irrelevant to the performance of
their official duties, it has been found that disclosure would indeed constitute an unwarranted
invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22,
1977, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup. Ct.,
Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal attorney that
could indicate how that person spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994),
concerning disclosure of social security numbers].

In conjunction with the foregoing, I note that it has been held by the Appellate Division,
Third Department, that disclosure of a public employee's educational background would not
constitute an unwarranted invasion of personal privacy and must be disclosed [see Ruberti,
Girvin & Ferlazzo v. NYS Division of State Police, 641 NYS 2d 411, 218 AD 2d 494 (1996)].

Additionally, in the lower court decision rendered in Kwasnik (Supreme Court, New
York County, September 26, 1997), the court cited and relied upon an opinion rendered by this
office and held that those portions of resumes, including information detailing one's public
employment, must be disclosed. The Court quoted from the Committee's opinion, which stated
that:

"If, for example, an individual must have certain types of experience, educational
accomplishments or certifications as a condition precedent to serving in [a] particular position,
those aspects of a resume or application would in my view be relevant to the performance of the
official duties of not only the individual to whom the record pertains, but also the appointing
agency or officers ... to the extent that records sought contain information pertaining to the
requirements that must have been met to hold the position, they should be disclosed, for I believe
that disclosure of those aspects of documents would result in a permissible rather than an
unwarranted invasion [of] personal privacy. Disclosure represents the only means by which the
public can be aware of whether the incumbent of the position has met the requisite criteria for
serving in that position.

In quoting from the opinion, the court also concurred with the following:

"Although some aspects of one's employment history may be withheld, the fact of
a person's public employment is a matter of public record, for records identifying public
employees, their titles and salaries must be prepared and made available under the Freedom of
Information Law [see §87(3)(b)]."

Items within an application for employment or a resume that may be withheld in my view would
include social security numbers, marital status, home addresses, hobbies, and other details of
one's life that are unrelated to the position for which he or she was hired.

In affirming the decision of the Supreme Court, the Appellate Division found that:

"This result is supported by opinions of the Committee on Open Government, to
which courts should defer (see, Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181, lv denied
48 NY2d 706), favoring disclosure of public employees' resumes if only because public
employment is, by dint of FOIL itself, a matter of public record (FOIL-AO-4010;
FOIL-AO-7065; Public Officers Law §87[3][b]). The dates of attendance at academic
institutions should also be subject to disclosure, at least where, as here, the employee did not
meet the licensing requirement for employment when hired and therefore had to have worked a
minimum number of years in the field in order to have qualified for the job. In such
circumstances, the agency's need for the information would be great and the personal hardship of
disclosure small (see, Public Officers Law §89[2][b][iv])."

In sum, again, I believe that the details within an employment applicant application that
are irrelevant to the performance of one's duties may generally be withheld. However, based on
judicial decisions, those portions of such a record or its equivalent detailing one's prior public
employment and other items that are matters of public record, general educational background,
licenses and certifications, and items that indicate that an individual has met the requisite criteria
to serve in the position must be disclosed.

In an effort to resolve the matter, a copy of this opinion will be sent to Mr. Pechenik.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Stephen A. Pechenik