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December 27, 2000

FOIL-AO-12423

Dear

            I have received your letter in which you sought an advisory opinion concerning “the City of Hudson’s decision to deny the Register-Star’s request for information regarding the status of disciplinary charges, financial retirement arrangements and negotiated settlements between the city and retired Police Chief Glenn Martin.”  The Mayor wrote that the City “cannot disclose any information concerning Mr. Martin due to the constraints of Civil Service 50-A [sic] and pursuant to the ruling of the Court of Appeals found at, In the Matter of Daily Gazette Company et al. vs. City of Schenectady et al., 93 NY2d 145 (1999).”

            While I am mindful of the decision rendered in Daily Gazette and the provisions of §50-a of the Civil Rights Law, based on the thrust of the decision and its judicial interpretation, I do not believe that §50-a  is applicable if an individual is no longer employed as a police officer.  Further, even if §50-a remains as a bar to disclosure, it would not, in my view, serve to exempt certain of the records sought from public rights of access.  In this regard, I offer the following comments.

            First, as you are likely aware, the statute that generally deals with rights of access to government records in New York is the Freedom of Information Law.  In brief, that statute 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.

            The first  ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute."  One such statute is §50-a of the Civil Rights Law.  In brief, that statute provides that personnel records of police and correction officers that are used to evaluate performance toward continued employment or promotion are confidential.  The Court of Appeals, in reviewing the legislative history leading to its enactment, found that:

"Given this history, the Appellate Division correctly determined that the legislative intent underlying the enactment of Civil Rights Law section 50-a was narrowly specific, 'to prevent time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action' (Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 109 AD 2d 92, 96).  In view of the FOIL's presumption of access, our practice of construing FOIL exemptions narrowly, and this legislative history, section 50-a should not be construed to exempt intervenor's 'Lost Time Record' from disclosure by the Police Department in a non-litigation context under Public Officers section 87(2)(a)" [Capital Newspapers v. Burns, 67 NY 2d 562, 569 (1986)].

            It was also determined that the exemption from disclosure conferred by §50-a of the Civil Rights Law "was designed to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination" (id. at 568).  In another decision, which dealt with unsubstantiated complaints against correction officers, the Court of Appeals held that the purpose of §50-a "was to prevent the release of sensitive personnel records that could be used in litigation for purposes of harassing or embarrassing correction officers" [Prisoners' Legal Services v. NYS Department of Correctional Services, 73 NY 2d 26, 538 NYS 2d 190, 191 (1988)]. 

            It is emphasized that the bar to disclosure imposed by §50-a deals with personnel records that “are used to evaluate performance toward continued employment or promotion.”  Since the officer in question has retired, there is no issue involving continued employment or promotion; he is no longer an employee or a police officer.  That being so, in my opinion, the rationale for the confidentiality accorded by §50-a is no longer present, and that statute no longer is applicable or pertinent.

            Second, even if the employee in question remained a police officer, and even if §50-a remained a consideration, according to the Court of Appeals’ holdings in Daily Gazette and Capital Newspapers, records indicating payments for, in your words, “accrued sick, vacation and/or personal leave time as well as any payment or payments for accrued overtime or compensatory time” and “any other...benefits”, those records would be accessible to the public under the Freedom of Information Law.  As stated in Daily Gazette:

“...when access to an officer’s personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a - - to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer.  We said as much in Matter of Prisoners’ Legal Services (supra), when after describing the legislative purpose of section 50-a, we expressly stipulated that ‘records having remote or not potential use, like those sought in Capital Newspapers, fall outside the scope of the statute’ (73 NY2d, at 33 [emphasis supplied]).  Thus, in Capital Newspapers v Burns, we upheld FOIL disclosure of a single police officer’s record of absences from duty for a specific month.  By itself, the information was neutral and did not contain any invidious implications capable facially of harassment or degradation of the officer in a courtroom.  The remoteness of any potential use of that officer’s attendance record for abusive exploitation freed the courts from the policy constraints of  Civil Rights Law § 50-a, enabling judicial enforcement of the FOIL legislative objectives in that case” [Daily Gazette v. City of  Schenectady, 93NY2d 145, 157-158 (1999)].

            Because the records reflective of payments or benefits are not used to evaluate performance, and because those records are "neutral", §50-a of the Civil Rights Law would not in my opinion serve to authorize the City to deny access to those records to the public.

            In Capital Newspapers, supra ,the Court of Appeals unanimously affirmed a decision granting access to records indicating the days and dates of sick leave claimed by a named police officer.  Those documents, like those that you requested, might be found in a police officer’s personnel file, but they are not the kind of records that fall within the coverage of §50-a of the Civil Rights Law.

            While tangential to the matter, I point out that §87(3) of the Freedom of Information Law states in relevant part that:

"Each agency shall maintain...

(b)  a record setting forth the name, public office address, title and salary of every officer or employee of the agency..."

            Although §87(2)(b) of the Freedom of Information Law authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy", the courts have provided substantial direction regarding the privacy of public employees.  First, it is clear 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.  Second, with regard to records pertaining to public employees, the courts have found that, as a general rule, 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); 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].

            Based upon the foregoing, it is clear in my view that records reflective of salaries of public employees must be prepared and made available.  Similarly, records reflective of other payments, whether they pertain to overtime, or participation in work-related activities, for example, would be available, for those records in my view would be relevant to the performance of one's official duties.  As indicated earlier, Capital Newspapers involved a request for records reflective of the days and dates of sick leave claimed by a particular municipal police officer, and in granting access, the Court of Appeals found that the public has both economic and safety reasons for knowing when public employees perform their duties and whether they carry out those duties when scheduled to do so.  As such, attendance records, including those involving overtime work, are in my opinion clearly available, for they are relevant to the performance of public employees' official duties.  Similarly, I believe that records reflective of payment of overtime must be disclosed, for the public has an economic interest in obtaining those records and because the records are relevant to the performance of public employees' official duties.

            In affirming the Appellate Division decision in Capital Newspapers, the Court of Appeals found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79).  The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (Capital Newspapers v. Burns, supra, 565-566).

            Based on the preceding analysis, it is clear in my view that the records involving payments are not exempt from disclosure under the Civil Rights Law, but rather that they must be disclosed under the Freedom of Information Law.

            With regard to the settlement agreement, in addition to consideration of §87(2)(b) regarding privacy, also relevant is §87(2)(g), which 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 a final agency determination, I believe that such a determination must be disclosed, again, unless a different ground for denial could be asserted.

            In Geneva Printing, supra, a public employee charged with misconduct and in the process of an arbitration hearing engaged in a settlement agreement with a municipality.  One aspect of the settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding the agreement of confidentiality, which apparently was based on an assertion that "the public interest is benefitted by maintaining harmonious relationships between government and its employees", the court found that no ground for denial could justifiably be cited to withhold the agreement. In so holding, the court cited a decision rendered by the Court of Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d 527), the Court of Appeals in concluding that a provision in a collective bargaining agreement which bargained away the board of education's right to inspect personnel files was unenforceable as contrary to statutes and public policy stated: 'Boards of education are but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public which they represent.  (at p.  531).

“A similar restriction on the power of the representatives for the Village of Lyons to compromise the public right to inspect public records operates in this instance.

“The agreement to conceal the terms of this settlement is contrary to the FOIL unless there is a specific exemption from disclosure.  Without one, the agreement is invalid insofar as restricting the right of the public to access.”

            It was also found that the record indicating the terms of the settlement constituted a final agency determination available under the Law.  The decision states that:

"It is the terms of the settlement, not just a notation that a settlement resulted, which comprise the final determination of the matter.  The public is entitled to know what penalty, if any, the employee suffered...The instant records are the decision or final determination of the village, albeit arrived at by settlement..."

           In another decision involving a settlement agreement between a school district and a teacher, it was held in Anonymous v. Board of Education [616 NYS 2d 867 (1994)] that:

"...it is disingenuous for petitioner to argue that public disclosure is permissible...only where an employee is found guilty of a specific charge.  The settlement agreement at issue in the instant case contains the petitioner's express admission of guilt to a number of charges and specifications.  This court does not perceive the distinction between a finding of guilt after a hearing and an admission of guilt insofar as protection from disclosure is concerned" (id., 870).

             As suggested by the Court in Anonymous, there is no distinction in substance between a finding of guilt after a hearing and an admission of guilt as a means of avoiding such a proceeding.
The same decision also referred to contentions involving privacy as follows:

"Petitioner contends that disclosure of the terms of the settlement at issue in this case would constitute an unwarranted invasion of his privacy prohibited by Public Officers Law § 87(2)(b).  Public Officers Law § 89(2)(b) defines an unwarranted invasion of personal privacy as, in pertinent part, '(i) disclosure of employment, medical or credit histories or personal references of applicants for employment.'  Petitioner argues that the agreement itself provides that it shall become part of his personnel file and that material in his personnel file is exempt from disclosure..." (id.).

            In response to those contentions, the decision stated that:

"This court rejects that conclusion as establishing an exemption from disclosure not created by statute (Public Officers Law § 87[2][a]), and not within the contemplation of the 'employment, medical or credit history' language found under the definition of 'unwarranted invasion of personal privacy' at Public Officers Law § 89(2)(b)(i).  In fact, the information sought in the instant case, i.e., the terms of settlement of charges of misconduct lodged against a teacher by the Board of Education, is not information in which petitioner has any reasonable expectation of privacy where the agreement contains the teacher's admission to much of the misconduct charged.  The agreement does not contain details of the petitioner's personal history-but it does contain the details of admitted misconduct toward students, as well as the agreed penalty.  The information is clearly of significant interest to the public, insofar as it is a final determination and disposition of matters within the work of the Board of Education and reveals the process of and basis for government decision-making.  This is not a case where petitioner is to be protected from possible harm to his professional reputation from unfounded accusations (Johnson Newspaper Corp. v. Melino, 77 N.Y.2d 1, 563 N.Y.S.2d 380, 564 N.E.ed 1046), for this court regards the petitioner's admission to the conduct described in the agreement as the equivalent of founded accusations.  As such, the agreement is tantamount to a final agency determination not falling within the privacy exemption of FOIL 'since it was not a disclosure of employment history.'" (id., 871).

            More recently, in LaRocca v. Board of Education of Jericho Union Free School District [632 NYS 2d 576 (1995)], the Appellate Division held that a settlement agreement was available insofar as it included admissions of misconduct.  In that case, charges were initiated under §3020-a of the Education Law, but were later "disposed of by negotiation and settled by an Agreement" (id., 577) and withdrawn.  The court rejected claims that the record could be characterized as an employment history that could be withheld as an unwarranted invasion of privacy, and found that a confidentiality agreement was invalid.  Specifically, it was stated that:

"Having examined the settlement agreement, we find that the entire document does not constitute an 'employment history' as defined by FOIL (see, Matter of Hanig v. State of New York Dept. of Motor Vehicles, supra) and it is therefore presumptively available for public inspection (see, Public Officers Law § 87[2]; Matter of Farbman & Sons v. New York City Health and Hosps. Corp., supra, 62 N.Y.2d 75, 476 N.Y.S.2d 69, 464 N.E.2d 437).  Moreover, as a matter of public policy, the Board of Education cannot bargain away the public's right of access to public records (see, Board of Educ., Great Neck Union Free School Dist. v. Areman, 41 N.Y.2d 527, 394 N.Y.S.2d 143, 362 N.E.2d 943)" (id., 578, 579).

            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.

            In sum, if the settlement resulted in the dismissal of disciplinary charges, I believe that the charges may be withheld.  However, assuming that §50-a of the Civil Rights Law does not apply, and I do not believe that it does, the terms of the settlement must, in my view, be disclosed.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:tt

cc: Hon. Kenneth G. Cranna