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October 13, 1999

FOIL-AO-11728

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

I have received your letter of August 24. You wrote that you are an employee of a state
agency and that an evaluation of your performance is "filled with false statements". You indicated
that you do not want the documentation disclosed when it is sought pursuant to a subpoena, and you
have requested assistance in the matter.

In this regard, I offer the following comments.

First, because the evaluation pertains to you, you are a "data subject" for purposes of the
Personal Privacy Protection Law. Under §95(2) of that statute, if you believe that the content of a
record about yourself is "not accurate, relevant, timely or complete", you may attempt to correct or
amend the record. If your initial request to do so is rejected, you have the right to appeal under
subdivision (3) of §95. If the appeal is denied, you have the right to prepare a statement of
disagreement, which would become part of the record.

Second, some aspects of your evaluation would be available to any person under the Freedom
of Information Law. I note that there is nothing in the Freedom of Information Law that deals
specifically with personnel records or personnel files. The nature and content of so-called personnel
files may differ from one agency to another and from one employee to another. Neither the
characterization of documents as personnel records nor their placement in personnel files would
necessarily render those documents confidential or deniable under the Freedom of Information Law
(see Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980).
On the contrary, the contents of those documents are the factors used in determining the extent to
which they are available or deniable under the Freedom of Information Law.

As a general matter, 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. It
is likely that two of the grounds for denial are relevant to an analysis of rights of access that may be
conferred by the Freedom of Information Law to the records in question.

Section 87(2)(g) enables an agency to 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.

Also significant is §87(2)(b), which permits an agency to withhold records when disclosure
would constitute "an unwarranted invasion of personal privacy." Although the standard concerning
privacy is flexible and may be subject to conflicting interpretations, the courts have provided
substantial direction regarding the privacy of public employees. It is clear based upon judicial
decisions that public employees enjoy a lesser degree of privacy than others, for it has been found
in various contexts that public employees are required to be more accountable than others. Further,
with regard to records pertaining to public employees, the courts have found in a variety of contexts
that records that are relevant to the performance of a public employee's 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, Sup. Ct.,
Suffolk Cty., NYLJ, Oct. 30, 1980); 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].

It is likely that performance evaluations are accessible and deniable in part under the
Freedom of Information Law. While the contents of evaluations may differ, I believe that a typical
evaluation contains three components.

One component involves a description of the duties to be performed by a person holding a
particular position, or perhaps a series of criteria reflective of the duties or goals to be achieved by
a person holding that position. Insofar as evaluations contain information analogous to that
described, I believe that those portions would be available. In terms of privacy, a duties description
or statement of goals would clearly be relevant to the performance of the official duties of the
incumbent of the position. Further, that kind of information generally relates to the position and
would pertain to any person who holds that position. As such, I believe that disclosure would result
in a permissible rather than an unwarranted invasion of personal privacy. In terms of §87(2)(g), a
duties description or statement of goals would be reflective of the policy of an agency regarding the
performance standards inherent in a position and, therefore, in my view, would be available under
§87(2)(g)(iii). It might also be considered factual information available under §87(2)(g)(i).

The second component involves the reviewer's subjective analysis or opinion of how well
or poorly the standards or duties have been carried out or the goals have been achieved. In my view,
that aspect of an evaluation could be withheld, both as an unwarranted invasion of personal privacy
and under §87(2)(g), on the ground that it constitutes an opinion concerning performance.

A third possible component is often a final rating, i.e., "good", "excellent", "average", etc.
Any such final rating would in my opinion be available, assuming that any appeals have been
exhausted, for it would constitute a final agency determination available under §87(2)(g)(iii),
particularly if a monetary award is based upon a rating. Moreover, a final rating concerning a public
employee's performance is relevant to that person's official duties and therefore would not in my
view result in an unwarranted invasion of personal privacy if disclosed.

In sum, the fact that documents are characterized as personnel records does not render them
confidential; for purposes of determining rights of access under the Freedom of Information Law,
the contents of the records and the effects of disclosure are, in my view, the factors pertinent in
relation to an agency's duty to grant or its ability to deny access.

Lastly, under §96 of the Personal Privacy Protection Law, a state agency cannot disclose
personal information except under a series of exceptions that authorize disclosure. One of the
exceptions, §96(1)(c), involves records available under the Freedom of Information Law, i.e., those
records which if disclosed would not constitute an unwarranted invasion of personal privacy.
Therefore, to the extent that the Freedom of Information Law grants access to the records at issue,
the Personal Privacy Protection Law would have no impact.

If it is determined that §96 is to be used in determining the extent of an agency's disclosure,
an additional issue arises, for §96(1)(k) authorizes an agency to disclose personal information "to
any person pursuant to a court ordered subpoena or other compulsory legal process." If a subpoena
served on the agency is considered to be compulsory legal process, the agency may have no choice
but to disclose.

As suggested earlier, you might want to attempt to correct or amend the portions of the
evaluation that you consider to be inaccurate.

Enclosed for your review are copies of the Personal Privacy Protection and Freedom of
Information Laws.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Jude Mullins