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August 30, 2001

FOIL-AO-12918

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

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

As you are aware, I have received your letter in which you raised questions relating to the
process of filling a vacancy on the Hilton Central School District Board of Education.

The first area of inquiry involves any requirement that the District publicize or disclose the
names of those who have applied to fill the vacant position. In this regard, there is nothing in the
Freedom of Information Law or any other law of which I am aware that would require that the
District, on its own initiative, to disclose the names of applicants. However, in response to a request
made under the Freedom of Information Law, I believe that the District would be required to disclose
a record or records identifying the applicants.

In brief, 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. The only
ground for denial of significance in my view would be §87(2)(b), which authorizes an agency to
withhold records insofar as disclosure would constitute "an unwarranted invasion of personal
privacy." The Court of Appeals, the state's highest court, held that the intent of the exception is to
permit agencies to protect against disclosure of "intimate details" of persons' lives, and that the
standard should consider the reasonable person of ordinary sensibilities [Hanig v. State Department
of Motor Vehicles, 79 NY 2d 106 (1992)]. From my perspective, the fact that a person has applied
to fill a vacancy in what ordinarily is an elective office would not represent a disclosure of an
intimate personal detail or would, therefore, constitute an unwarranted invasion of personal privacy.

Similar considerations would be pertinent in determining rights of access "application letters"
and resumes of applicants. I note, too, that §89(2)(b) includes a series of examples of unwarranted
invasions of personal privacy. Based on those examples, a person's employment history, other than
public employment, may be withheld; medical information may be withheld; other details, such as
a social security number, may also be withheld in my view. However, some details within the
records would not in my opinion rise to the level of an unwarranted invasion of personal privacy if
disclosed. For instance, it has been held that one's general educational background must be
disclosed [see Ruberti, Girvin & Ferlazzo v. NYS Division of State Police, 641 NYS2d 411, 218
AD2d 494(1996)].

The remaining area of inquiry involves the Board's ability to interview or discuss the
applicants in executive session. By way of background, the Open Meetings Law is based on a
presumption of openness. In a manner analogous to the Freedom of Information Law, meetings of
public bodies must be conducted in public except to the extent that an executive session may
appropriately be held. Paragraphs (a) through (h) of §105(1) of the Open Meetings Law specify and
limit the subjects that may properly be considered during an executive session.

In my opinion, the only provision that might justify the holding of an executive session is
§105(1)(f) of the Open Meetings Law, which permits a public body to enter into an executive session
to discuss:

"the medical, financial, credit or employment history of a particular
person or corporation, or matters leading to the appointment,
employment, promotion, demotion, discipline, suspension, dismissal
or removal of a particular person or corporation..."

Under the language quoted above, it would appear that a discussion focusing on the individual
candidates could validly be considered in an executive session, for it would involve a matter leading
to the appointment of a particular person. Nevertheless, in the only decision of which I am aware
that dealt directly with the propriety of holding an executive to discuss filling a vacancy in an
elective office, the court found that there was no basis for entry into executive session. In
determining that an executive session could not properly have been held, the court stated that:

"...respondents' reliance on the portion of Section 105(1)(f) which
states that a Board in executive session may discuss the
'appointment...of a particular person...' is misplaced. In this Court's
opinion, given the liberality with which the law's requirements of
openness are to be interpreted (Holden v. Board of Trustees of
Cornell Univ., 80 AD2d 378) and given the obvious importance of
protecting the voter's franchise this section should be interpreted as
applying only to employees of the municipality and not to
appointments to fill the unexpired terms of elected officials.
Certainly, the matter of replacing elected officials, should be subject
to public input and scrutiny" (Gordon v. Village of Monticello,
Supreme Court, Sullivan County, January 7, 1994), modified on other
grounds, 207 AD 2d 55 (1994)].

Based on the foregoing, notwithstanding its language, the court in Gordon held that §105(1)(f) could
not be asserted to conduct an executive session. I point out that the Appellate Division affirmed the
substance of the lower court decision but did not refer to the passage quoted above. Whether other
courts would uniformly concur with the finding enunciated in that passage is conjectural.
Nevertheless, since it is the only decision that has dealt squarely with the issue at hand, I believe that
it is appropriate to consider Gordon as an influential precedent.

I hope that I have been of assistance.


RJF:tt

cc: Board of Education