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July 27, 2000

FOIL-AO-12226

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 June 23 in which you sought an advisory opinion
concerning a denial of your request made under the Freedom of Information Law to the
Berlin School District.

Specifically, you wrote that you requested "the credentials of the person providing
most of the counseling" in the District, and that the individual who is the subject of your
request "is independently contracted to provide counseling full-time in the three elementary
schools." It is your belief that she does not have the requisite certification and you "want to
see a resume or something that tells [you] what credentials she holds." In response to the
request, you were informed that "such records are not maintained by the school district" and
you asked whether "there are certain records that are expected to be kept and therefore made
available."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to records maintained by or for an
agency, such as a school district, and §86(4) defines the term "record" expansively to
include:

"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, if a resume or similar document is not maintained on the District's
premises, but rather is in the possession of a Board member at his or her home, for example,
or by the District's attorney at his or her office, any such materials would constitute agency
records that fall within the coverage of the Freedom of Information Law, irrespective of the
location where they are kept.

Second, assuming that the District may have had possession of the record of your
interest, I note that Article 57- A of the Arts and Cultural Affairs Law, the "Local
Government Records Law", requires that school districts and other local governmental
entities must retain records for specified periods before the records may be disposed of or
destroyed. I am unaware of the retention period applicable to the kind of record in which you
are interested. However, the State Archives and Records Administration (SARA), a unit of
the State Education Department, develops schedules indicating the minimum periods of
retention for certain kinds of records, and a representative of that office can likely inform you
of the retention period applicable to the record in question. SARA can be reached at 474-
6926.

Third, when an agency indicates that it does not maintain or cannot locate a record, an
applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom
of Information Law provides in part that, in such a situation, on request, an agency "shall
certify that it does not have possession of such record or that such record cannot be found
after diligent search." If you consider it worthwhile to do so, you could seek such a
certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was
found that a court could not validly accept conclusory allegations as a substitute for proof
that an agency could not locate a record after having made a "diligent search". However, in
another decision, such an allegation was found to be sufficient when "the employee who
conducted the actual search for the documents in question submitted an affidavit which
provided an adequate basis upon which to conclude that a 'diligent search' for the documents
had been made" [Thomas v. Records Access Officer, 613 NYS 2d 929, 205 AD 2d 786
(1994)].

Fourth, insofar as records are kept by or for an agency, they are subject to rights of
access. 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. Pertinent to an analysis of rights of access is §87(2)(b), which states
that an agency may withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy."

Based on the judicial interpretation of the Freedom of Information Law, it is clear that
public officers and employees, as well as those performing duties for agencies, enjoy a lesser
degree of privacy than others, for it has been found in various contexts that those individuals
are required to be more accountable than others. The courts have found that, as a general
rule, records that are relevant to the performance of the official duties of those persons 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
items are irrelevant to the performance of their 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, dealing with membership in a
union; Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving
the back of a check payable to a municipal attorney that could indicate how that person
spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of
social security numbers].

In a judicial decision that focused on the kinds of records at issue, Kwasnik v. City of
New York (Supreme Court, New York County, September 26, 1997), the court quoted from
and relied upon an opinion rendered by this office and held that portions of resumes must be
disclosed in accordance with the previous commentary. The Committee's opinion stated that:

"If, for example, an individual must have certain types of
experience, educational accomplishments or certifications as a
condition precedent to serving in [a] particular position, those
aspects of a resume or application would in my view be
relevant to the performance of the official duties of not only the
individual to whom the record pertains, but also the appointing
agency or officers ... to the extent that records sought contain
information pertaining to the requirements that must have been
met to hold the position, they should be disclosed, for I believe
that disclosure of those aspects of documents would result in a
permissible rather than an unwarranted invasion [of] personal
privacy. Disclosure represents the only means by which the
public can be aware of whether the incumbent of the position
has met the requisite criteria for serving in that position."

I note that Kwasnik was affirmed by the Appellate Division [691 NYS2d 525,
___AD2d___(1999)]. Based on that decision and others dealing involving analogous
principles, those portions of a resume that are relevant to the performance of one's duties,
including certification, must be disclosed. In addition, it has been held that those portions of
records indicating one's general education background must be disclosed [Ruberti, Girvin
and Ferlazzo v. NYS Division of State Police, 218 AD2d 494 (1996)].

In an effort to enhance compliance with and understanding of applicable law, copies
of this opinion will be forwarded to District officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm
cc: Board of Education
Superintendent