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October 19, 1999

 

Mr. Robert Sanchez
86-A-3762 A-0-59
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562-5442

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. Sanchez:

I have received your letter of August 23 and the correspondence attached to it. You
have sought my views concerning a request for records relating to the discipline or dismissal
of an employee of the Office of the Chief Medical Examiner of New York City.

In this regard, first, in consideration of the initial response to your request, I note that
the Freedom of Information Law pertains to existing records. If the agency to which the
request was made does not maintain the records of your interest, that statute would not apply.

Second, insofar as the records sought do exist, 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, 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].

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.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Sarah Scott
Ellen Borakove