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September 24, 1999

 

Mr. Robert Board
116-15 144th Street
Jamaica, NY 11436

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. Board:

I have received your letter of September 22 in which you appealed a denial of access
to records by the New York City Transit Authority. The correspondence accompanying your
letter indicates that the Authority denied access to "disciplinary records" relating to three of
its employees.

In this regard, the Committee on Open Government is authorized to provide advice
and opinions concerning the Freedom of Information Law. The Committee is not empowered
to determine appeals or otherwise compel an agency to grant or deny access to records. The
provision dealing with the right to appeal, §89(4)(a), states in relevant part that:

"any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive or
governing body of the entity, or the person therefor designated
by such head, chief executive, or governing body, who shall
within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the
reasons for further denial, or provide access to the record
sought."

Further, the regulations promulgated by the Committee on Open Government (21
NYCRR Part 1401), which govern the procedural aspects of the Law, state that:

"(a) The governing body of a public corporation or the head,
chief executive or governing body of other agencies shall hear
appeals or shall designate a person or body to hear appeals
regarding denial of access to records under the Freedom of
Information Law.

(b) Denial of access shall be in writing stating the reason
therefor and advising the person denied access of his or her
right to appeal to the person or body established to hear
appeals, and that person or body shall be identified by name,
title, business address and business telephone number. The
records access officer shall not be the appeals officer"
(§1401.7).

It is also noted that the state's highest court has held that a failure to inform a person
denied access to records of the right to appeal enables that person to seek judicial review of
a denial. Citing the Committee's regulations and the Freedom of Information Law, the Court
of Appeals in Barrett v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to advise petitioner
of the availability of an administrative appeal in the office (see,
21 NYCRR 1401.7[b]) and failed to demonstrate in the
proceeding that the procedures for such an appeal had, in fact,
even been established (see, Public Officers Law [section]
87[1][b], he cannot be heard to complain that petitioner failed
to exhaust his administrative remedies" [74 NY 2d 907, 909
(1989)].

Rather than initiating litigation, it is suggested that you contact Gail Rogers, the
Authority's freedom of information officer, to ascertain the identity of the person designated
by the Authority to determine appeals.

With respect to the substance of the matter, insofar as records indicate a finding
misconduct or the nature of a penalty imposed, I believe that they must be made available.

By way of background, 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. In my view, two of the grounds for denial are relevant in
consideration of rights of access to the records in question.

Relevant to an analysis is §87(2)(b), which permits an agency to withhold records to
the extent that disclosure would constitute "an unwarranted invasion of personal privacy".
While the standard concerning privacy is flexible and may be subject to conflicting
interpretations, the courts have provided substantial direction regarding the privacy of public
officers employees. 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 public officers and
employees are required to be more accountable than others. With regard to records
pertaining to public officers and employees, the courts have found that, as a general rule,
records that are relevant to the performance of a their official duties 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, supra; Capital Newspapers v. Burns, 67 NY 2d 562
(1986)]. Conversely, to the extent that records are irrelevant to the performance of one's
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].

The other ground for denial of significance, §87(2)(g), states that an agency may
withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits
performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While
inter-agency or intra-agency materials may be withheld, portions of such materials consisting
of statistical or factual information, instructions to staff that affect the public, final agency
policy or determinations or external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those portions of inter-agency or
intra-agency materials that are reflective of opinion, advice, recommendation and the like
could in my view be withheld. Insofar as a request involves final agency determinations, I
believe that those determinations must be disclosed, again, unless a different ground for denial
could be asserted.

In terms of the judicial interpretation of the Freedom of Information Law, it is
emphasized that in situations in which allegations or charges have resulted in the issuance of
a written reprimand, disciplinary action, or findings that public employees have engaged in
misconduct, records reflective of those kinds of determinations have been found to be
available, including the names of those who are the subjects of disciplinary action [see
Powhida v. City of Albany, 147 AD 2d 236 (1989); also Farrell, Geneva Printing, Scaccia and
Sinicropi, supra]. Three of the decisions cited above, Powhida, Farrell and Scaccia involved
police officers, and in each case, the names of the officers were determined to be public.

Other decisions have dealt with settlements reached following the initiation of
disciplinary proceedings. In Geneva Printing, supra, a public employee charged with
misconduct and in the process of an arbitration hearing engaged in a settlement agreement
with a municipality. One aspect of the settlement was an agreement to the effect that its terms
would remain confidential. Notwithstanding the agreement of confidentiality, which
apparently was based on an assertion that "the public interest is benefited by maintaining
harmonious relationships between government and its employees", the court found that no
ground for denial could justifiably be cited to withhold the agreement. On the contrary, it was
determined that:

"the citizen's right to know that public servants are held
accountable when they abuse the public trust outweighs any
advantage that would accrue to municipalities were they able
to negotiate disciplinary matters with its employee with the
power to suppress the terms of any settlement".

It was also found that the record indicating the terms of the settlement constituted a final
agency determination available under the Law. The decision states that:

"It is the terms of the settlement, not just a notation that a
settlement resulted, which comprise the final determination of
the matter. The public is entitled to know what penalty, if
any, the employee suffered...The instant records are the
decision or final determination of the village, albeit arrived at
by settlement..."

In another more recent decision involving a settlement agreement between a school
district and a teacher, it was held in Anonymous v. Board of Education [616 NYS 2d 867
(1994)] that:

"...it is disingenuous for petitioner to argue that public
disclosure is permissible...only where an employee is found
guilty of a specific charge. The settlement agreement at issue
in the instant case contains the petitioner's express admission
of guilt to a number of charges and specifications. This court
does not perceive the distinction between a finding of guilt
after a hearing and an admission of guilt insofar as protection
from disclosure is concerned" (id., 870).

As suggested by the Court in Anonymous, there is no distinction in substance
between a finding of guilt after a hearing and an admission of guilt as a means of avoiding
such a proceeding.
The same decision also referred to contentions involving privacy as follows:

"Petitioner contends that disclosure of the terms of the
settlement at issue in this case would constitute an
unwarranted invasion of his privacy prohibited by Public
Officers Law § 87(2)(b). Public Officers Law § 89(2)(b)
defines an unwarranted invasion of personal privacy as, in
pertinent part, '(i) disclosure of employment, medical or credit
histories or personal references of applicants for employment.'
Petitioner argues that the agreement itself provides that it shall
become part of his personnel file and that material in his
personnel file is exempt from disclosure..." (id.).

In response to those contentions, the decision stated that:

"This court rejects that conclusion as establishing an
exemption from disclosure not created by statute (Public
Officers Law § 87[2][a]), and not within the contemplation of
the 'employment, medical or credit history' language found
under the definition of 'unwarranted invasion of personal
privacy' at Public Officers Law § 89(2)(b)(i). In fact, the
information sought in the instant case, i.e., the terms of
settlement of charges of misconduct lodged against a teacher
by the Board of Education, is not information in which
petitioner has any reasonable expectation of privacy where the
agreement contains the teacher's admission to much of the
misconduct charged. The agreement does not contain details
of the petitioner's personal history-but it does contain the
details of admitted misconduct toward students, as well as the
agreed penalty. The information is clearly of significant
interest to the public, insofar as it is a final determination and
disposition of matters within the work of the Board of
Education and reveals the process of and basis for government
decision-making. This is not a case where petitioner is to be
protected from possible harm to his professional reputation
from unfounded accusations (Johnson Newspaper Corp. v.
Melino, 77 N.Y.2d 1, 563 N.Y.S.2d 380, 564 N.E.ed 1046),
for this court regards the petitioner's admission to the conduct
described in the agreement as the equivalent of founded
accusations. As such, the agreement is tantamount to a final
agency determination not falling within the privacy exemption
of FOIL 'since it was not a disclosure of employment history.'"
(id., 871).

Most recently, in LaRocca v. Board of Education of Jericho Union Free School
District [632 NYS 2d 576 (1995)], the Appellate Division held that a settlement agreement
was available insofar as it included admissions of misconduct. In that case, charges were
initiated under §3020-a of the Education Law, but were later "disposed of by negotiation and
settled by an Agreement" (id., 577) and withdrawn. The court rejected claims that the record
could be characterized as an employment history that could be withheld as an unwarranted
invasion of privacy, and found that a confidentiality agreement was invalid. Specifically, it
was stated that:

"Having examined the settlement agreement, we find that the
entire document does not constitute an 'employment history'
as defined by FOIL (see, Matter of Hanig v. State of New
York Dept. of Motor Vehicles, supra) and it is therefore
presumptively available for public inspection (see, Public
Officers Law § 87[2]; Matter of Farbman & Sons v. New York
City Health and Hosps. Corp., supra, 62 N.Y.2d 75, 476
N.Y.S.2d 69, 464 N.E.2d 437). Moreover, as a matter of
public policy, the Board of Education cannot bargain away the
public's right of access to public records (see, Board of Educ.,
Great Neck Union Free School Dist. v. Areman, 41 N.Y.2d
527, 394 N.Y.S.2d 143, 362 N.E.2d 943)" (id., 578, 579).

In contrast, when allegations or charges of misconduct have not yet been determined
or did not result in disciplinary action or a finding of misconduct, the records relating to such
allegations may, in my view, be withheld, for disclosure would result in an unwarranted
invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse,
430 NYS 2d 460 (1980)]. Similarly, to the extent that charges are dismissed or allegations
are found to be without merit, I believe that they may be withheld. As stated earlier, the
records in this instance do not involve mere allegations. The facts of the matter are
undisputed, admissions have been made, and disciplinary action has been or will be taken.

It is emphasized the courts have consistently interpreted the Freedom of Information
Law in a manner that fosters maximum access. As stated by the Court of Appeals more than
a decade ago:

"To be sure, the balance is presumptively struck in favor of
disclosure, but in eight specific, narrowly constructed
instances where the governmental agency convincingly
demonstrates its need, disclosure will not be ordered (Public
Officers Law, section 87, subd 2). Thus, the agency does not
have carte blanche to withhold any information it pleases.
Rather, it is required to articulate particularized and specific
justification and, if necessary, submit the requested materials
to the court for in camera inspection, to exempt its records
from disclosure (see Church of Scientology of N.Y. v. State
of New York, 46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of one of these
statutory exemptions may disclosure be withheld" [Fink v.
Lefkowitz, 47 NY 2d 567, 571 (1979)].

In a decision that was cited earlier, the Court of Appeals found that:

"The Freedom of Information Law expresses this State's
strong commitment to open government and public
accountability and imposes a broad standard of disclosure
upon the State and its agencies (see, Matter of Farbman &
Sons v New York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance of the public's
vested and inherent 'right to know', affords all citizens the
means to obtain information concerning the day-to-day
functioning of State and local government thus providing the
electorate with sufficient information 'to make intelligent,
informed choices with respect to both the direction and scope
of governmental activities' and with an effective tool for
exposing waste, negligence and abuse on the part of
government officers" (Capital Newspapers v. Burns, supra,
565-566).

For the reasons described above, it is my opinion that records indicating the names of
the public employees and the nature of disciplinary action or sanction imposed against them
must be disclosed.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Gail Rogers