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September 15, 1999

Mr. Maurice J. Hurd
Director of Personnel
County of Oswego
Department of Personnel
county Building
46 East Bridge Street
Oswego, NY 13126

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.

Dear Mr. Hurd:

I have received your letter of August 16 in which you sought my views concerning "the
public accessibility of exam scores prior to the establishment of the official eligible list." You
indicated that you "are uncertain whether [you] must provide the score of passing candidates prior
to the official establishment of the eligible list."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to all agency records, and §86(4) of the Law
defines the term "record" expansively to mean:

"any information kept, held, filed, produced, reproduced by, with or
for an agency or the state legislature, in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, folders, files, books, manuals, pamphlets,
forms, papers, designs, drawings, maps, photos, letters, microfilms,
computer tapes or discs, rules, regulations or codes."

Based on the foregoing, once an eligible list exists, either in paper or electronic form, and
irrespective of whether it is characterized as "official", I believe that it would constitute a "record"
that falls within the coverage of the Freedom of Information Law.

Second, as you are aware, the Regulations of the Department of Civil Service, §71.3,
indicate that eligible lists "may be published with the standing of persons named in them". There
is no provision of law of which I am aware that focuses directly on records identifying those who
passed civil service exams prior to the establishment of the official eligible list. That being so, I
believe that the Freedom of Information Law would govern rights of access.

In brief, that statute 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. From my perspective, only
one of the grounds for denial is pertinent to the issue, and I do not believe that it could be asserted
to withhold a record identifying those who passed an exam.

Specifically, §87(2)(b) authorizes an agency to withhold records to the extent that disclosure
would constitute "an unwarranted invasion of personal privacy." In my opinion, disclosure of the
fact that individuals have passed a civil service exam would not fall within the exception, for
essentially the same information is later made available in a record characterized as "official", the
eligible list. I agree with your practice of withholding records insofar as they identify persons who
failed an exam; a failure would be embarrassing, it would denote ineligibility to serve in a position
and would, in my view, be nobody's business. Consequently, it has consistently been advised that
the identities of those who failed an exam may be withheld as an unwarranted invasion of personal
privacy. It has also been advised that a list of those who took an exam may be withheld, for it could
later be compared with the eligible list, thereby enabling the recipient of those records to ascertain
who may have failed. In contrast, I do not believe that there would be any similar harm associated
with passing an exam, especially when the same information will later be part of a record that is
clearly accessible to the public.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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