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December 7, 2000

 

FOIL-AO-12396

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 October 25 in which you questioned whether or the extent to
which the performance evaluation of a public employee should be disclosed under the Freedom of
Information Law.

Although numerous opinions have been prepared at your request relating to the matter at
issue, I offer the following comments.

First, as you are aware, 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.

Second, 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. Two of the grounds for denial are relevant to an analysis of rights of access 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].

While the contents of performance evaluations may differ, I believe that a typical evaluation
contains three components.

One 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
opinion, 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, as in this instance, 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.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Ron LeDonni
Celeste Segure
Chad Vignola
Anne Marie Iannizzi