February 2, 2000

FOIL-AO-11936

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 December 28 in which you sought an advisory opinion
in your capacity as attorney for the Ellenville Central School District concerning a request
made under the Freedom of Information Law. Your question is: "Are the ratings of
‘satisfactory' or ‘unsatisfactory' given to teachers for classroom evaluations to be considered
‘final ratings', which have to be made available under FOIL, or are they opinions or perhaps
‘interim ratings' which do not have to be made available under FOIL." You added that the
evaluations and ratings at issue are not "annual reviews".

In this regard, from my perspective, the question may be answered based on the
function of the ratings. The "annual reviews" to which you referred are not fully described.
However, it appears that the outcome of those reviews would represent the District's final
determination concerning an employee's performance. If that is so, and if the ratings
prepared based on classroom evaluations represent a preliminary element used later in
reaching a final determination concerning performance, I do not believe that there would be
an obligation to disclose.

As you are 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.

Pertinent to an analysis of rights of access is §87(2)(g), which permits 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.

I point out that the Appellate Division, Second Department, has determined that
records apparently analogous to those requested may be withheld, stating that:

"The lesson observation reports consist solely of advice,
criticisms, evaluations, and recommendations prepared by the
school assistant principal regarding lesson preparation and
classroom performance. As such, these reports fall squarely
within the protection of Public Officers Law § 87(2)(g)"
[Elentuck v. Green, 202 AD2d 425, 608 NYS2d 701, 702
(1994)].

If the contents, nature or function of the records at issue are different or
distinguishable from the records considered in Elentuck, the result, in terms of the ability to
deny access, may also be different. If, however, they are indeed analogous to those found to
be deniable, I believe that the records may be withheld.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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