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March 20, 2001

FOIL-AO-12594

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 and the correspondence relating to it. You have jointly sought an
opinion concerning the ability of the State Education Department to disclose certain teacher test
scores to the New York City Board of Education in an effort to assess the connection between those
scores and student performance.

In a letter addressed to Mr. Vignola by Charles C. Mackey, Jr., Executive Coordinator of the
State Education Department's Office of Teaching, Mr. Mackey wrote that the request involved
applicants for teaching positions in the New York City School District and "the actual scaled scores
for each of 2,500 individuals matched to the individuals' names, social security numbers, and New
York City file numbers." If disclosed, the data would be used, according to Mr. Vignola, "solely for
purposes of statistical analysis in aid of our efforts to hire the most qualified and certified candidates
available to teach in SURR and other often high-needs schools." Mr. Mackey contends that
disclosure of the test scores would constitute an unwarranted invasion of personal privacy, and that
the Personal Privacy Protection Law prohibits the Department from disclosing the information
sought absent the consent of the persons identified in the data. Mr. Vignola, on the other hand,
contends that several provisions in that statute permit the Department to disclose.

In this regard, I offer the following comments.

First, as you are aware, the Freedom of Information Law is applicable to agencies of state and
local government [see definition of "agency", §86(3)]. The Personal Privacy Protection Law,
however, applies only to state agencies. For the purposes of that statute, the term "agency" is defined
in §92(1) to mean:

"any state board, bureau, committee, commission, council,
department, public authority, public benefit corporation, division,
office or any other governmental entity performing a governmental or
proprietary function for the state of New York, except the judiciary
or the state legislature or any unit of local government and shall not
include offices of district attorneys."

Consequently, while the Board of Education is subject to the Freedom of Information Law, the State
Education Department is subject to that statute, as well as the Personal Privacy Protection Law.

Under the latter, a "data subject" is "any natural person about whom personal information has
been collected by an agency" [§92(3)]; "personal information" is defined to mean "any information
concerning a data subject which, because of name, number, symbol, mark or other identifier, can be
used to identify that data subject" [§92(7)]; and the term "record" is defined to mean "any item,
collection or grouping of personal information about a data subject which is maintained and is
retrievable by use of the name or other identifier of the data subject" [§92(9)].

Section 96(1) states that "No agency may disclose any record or personal information",
except in conjunction with a series of exceptions that follow. One of those exceptions, §96(1)(c),
involves a case in which a record is "subject to article six of this chapter [the Freedom of Information
Law], unless disclosure of such information would constitute an unwarranted invasion of personal
privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter".
Section 89(2-a) of the Freedom of Information Law states that "Nothing in this article shall permit
disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision
two of this section if such disclosure is prohibited under section ninety-six of this chapter".
Consequently, if a state agency cannot disclose records pursuant to §96 of the Personal Protection
Law, it is precluded from disclosing under the Freedom of Information Law; alternatively, if
disclosure of a record would not constitute an unwarranted invasion of personal privacy and if the
record is available under the Freedom of Information Law, it may be disclosed under §96(1)(c).

It has been consistently advised that a license, a permit, or in the context of the issues present
here, a certification indicating that an individual is qualified to teach in certain areas, must be
disclosed. In each instance, disclosure indicates that an individual is qualified to engage in a certain
activity over which the state has oversight. While release of those records identifies individuals,
disclosure would constitute a permissible rather than an unwarranted invasion of personal privacy.
Although I know of no judicial decision that deals specifically with the disclosure of individual
scores in certification examinations, it has been held that transcripts indicating grades in certain
courses taken by teachers may be withheld to protect their privacy (Steinmetz v. Board of Education,
Supreme Court, Suffolk County, NYLJ, October 30, 1980). In my view, that an individual has met
the requirements to gain certification is clearly public. However, the score on the certification exam,
like the grades in Steinmetz, in my opinion would, if disclosed, constitute an unwarranted invasion
of personal privacy.

That being so, I believe that the State Education Department must withhold the personally
identifying data sought to comply with the Personal Privacy Protection Law, unless it exercises its
discretionary authority to disclose in accordance with §96(1). It is emphasized that the ability to
disclose under that provision does not give the entity seeking personal information a right of access
to the information. Even if an exception authorizes the Department to disclose, it would not be
obliged to do so.

Several of the exceptions appearing in §96(1) might arguably permit the Department to
disclose. However, most authorize disclosure in situations in which personal information is
"necessary" for the receiving agency to carry out its official duties or to comply with statutory
requirements. As I understand the matter, disclosure to the Board of Education would enhance its
ability to carry out its duties; as stated by Mr. Vignola, the data would be used "in aid of" the Board's
efforts in hiring the most qualified candidates. While the data would be helpful to the Board, it is
apparently not "necessary", for the Board has functioned to date without the data. If my view is
accurate, the Department would not have the authority to disclose.

Lastly, unlike a state agency which is required to comply with the Personal Privacy Protection
Law and which, therefore, would be prohibited from disclosing or disseminating information the
disclosure of which would constitute an unwarranted invasion of personal privacy, a municipal
entity, which is not subject to that statute, would not be prohibited from disclosing. In Seelig v.
Sielaff [200 AD2d 298], the lower court enjoined a New York City agency from releasing the social
security numbers of correction officers without their written consent. While the Appellate Division
agreed that disclosure of social security numbers would result in an unwarranted invasion of
correction officers' privacy and could be withheld under §87(2)(b) of the Freedom of Information
Law, the Court unanimously reversed and vacated the judgment because the agency involved is an
entity of local government. Specifically, it was found that:

"The injunctive relief granted by the IAS Court was based upon
Public Officers Law §92 (1), part of this State's Personal Privacy
Protection Law. That law by its own terms excepts the judiciary, the
State Legislature, and 'any unit of local government' from its purview.
Consequently, the relief granted against the respondents was
improper" (id., 299).

Further, the Court of Appeals had held that the Freedom of Information Law permits but does
not require that an agency withhold when disclosure would result in an unwarranted invasion of
personal privacy. Specifically, it was found that:

"...while an agency is permitted to restrict access to those records
falling within the statutory exemptions, the language of the exemption
provision contains permissive rather than mandatory language, and it
is within the agency's discretion to disclose such records, with or
without identifying details, if it so chooses" [Capital Newspapers v.
Burns, 67 NY2d 562, 567 (1986)].

In short a local government may opt to disclose personal information, even when disclosure would
result in an unwarranted invasion of personal privacy.

In consideration of the foregoing and the restrictions imposed upon the State Education
Department by the Personal Privacy Protection Law, it is suggested that it may be possible for the
Board to transmit data to the Department in order that the Department might conduct the kind of
match that would provide the information desired without making a disclosure that may be in
contravention of law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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