NY.gov Portal State Agency Listing

 

May 31, 2001

FOIL-AO-12692

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter in which you questioned whether you, as a member of the Elma
Town Board, "should have to resort to the Freedom of Information Act to obtain information that
[you] set policy on." According to the correspondence attached to your letter, you sought "copies
of all employees' individual vouchers covering the Town's reimbursement of Medical expenses."
You added in your letter to this office that you "did not request personal medical information, just
the name and amount of dollars paid by the Town."

In this regard, I offer the following comments.

First, from my perspective, the Freedom of Information Law is intended to enable the public
to request and obtain accessible records. Further, it has been held that accessible records should be
made equally available to any person, without regard to status or interest [see e.g., Burke v.
Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman & Sons
v. New York City, 62 NY 2d 75 (1984)]. Nevertheless, if it is clear that records are requested in the
performance of one's official duties, the request might not be viewed as having been made under the
Freedom of Information Law. In such a situation, if a request is reasonable, and in the absence of
a rule or policy to the contrary, I believe that a member of a board should not generally be required
to resort to the Freedom of Information Law in order to seek or obtain records.

However, viewing the matter from a more technical perspective, one of the functions of a
public body involves acting collectively, as an entity. A town board, as the governing body of a
public corporation, generally acts by means of motions carried by an affirmative vote of a majority
of its total membership (see General Construction Law, §41; also Town Law, §63). In my view, in
most instances, a board, member acting unilaterally, without the consent or approval of a majority
of the total membership of the board, has the same rights as those accorded to a member of the
public, unless there is some right conferred upon a board member by means of law or rule. In the
absence of any such rule, a member seeking records could presumably be treated in the same manner
as the public generally.

Second, the Freedom of Information Law, in brief, 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.

It is noted that there is nothing in the Freedom of Information Law that deals specifically with
personnel records or personnel files. Further, the nature and content of so-called personnel files may
differ from one agency to another, and from one employee to another. In any case, 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 serve as the relevant factors in determining the
extent to which they are available or deniable under the Freedom of Information Law.

The provision in the Freedom of Information Law of most significance concerning the
information in question is, in my view, §87(2)(b). That provision permits an agency to withhold
records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy".

While the standard concerning privacy is flexible and may be subject to conflicting
interpretations, the courts have provided substantial direction regarding the privacy of public officers
employees. It is clear that public officers and employees enjoy a lesser degree of privacy than others,
for it has been found in various contexts that public officers and employees are required to be more
accountable than others. Further, with regard to records pertaining to public officers and employees,
the courts have found that, as a general rule, records that are relevant to the performance of a their
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, supra; Capital Newspapers v. Burns, 109 AD 2d 292 (1985) aff'd 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].

In my opinion, names of employees or family members coupled with amounts of
reimbursements appearing on vouchers would, if disclosed, constitute an unwarranted invasion of
personal privacy, even though they do not indicate particular medical condition or problem. I believe
that items of that nature are largely irrelevant to the performance of one's official duties. Further,
vouchers indicating treatment, or particularly the frequency of treatment, and the amounts
reimbursed, represent somewhat intimate details of peoples' lives. For that reason as well, again,
I would contend that disclosure would result in an unwarranted invasion of privacy.

I hope that the foregoing serves to clarify your understanding and that I have been of
assistance.

Sincerely,

Robert J. Freeman
Executive Director
RJF:tt

cc: Hon. Patricia King
Rosemary L. Bapst