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FOIL-AO-13731

November 27, 2002

 

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 in which you sought an opinion concerning an incident that
occurred at your place of employment, the Capital District Psychiatric Center.

By way of background, you indicated that you serve a variety of patients in the performance
of your duties, and that it is not "uncommon for a particular patient...to be annoyed or angry with
[you] regarding an unfavorable decision." One aspect of treatment at the Center involves vocational
rehabilitative services, and you wrote that patients may be placed in a work setting in order to
develop job-related skills, but that those persons are not employees of the Center. The problem arose
when you filled out a form for direct deposit of your paycheck; the form included your name, home
address, unlisted home phone number and your social security number. After your return from a
vacation, you found the form on the floor of your office with a note attached to it indicating that you
must fill in your bank account number, and the note was signed by an inpatient on the unit where you
work. You wrote that you had no knowledge that patients were receiving rehabilitative vocational
services in the Center's personnel office. Since those personal items about you had been effectively
disclosed to one or perhaps more patients, you brought the matter to the attention of your supervisor,
who apparently agreed with your contention that patients should not have the ability to see or gain
access to personal information pertaining to you or other employees. The Director of Treatment
Services, however, suggested that there was no reason to change the Center's practices. As of the
date of your letter to this office, no action had been taken concerning your complaint. You wrote
that it is not your intention to initiate any sort of proceeding concerning the disclosure, but that you
"just want to go home and sleep well and ensure your family is safe."

From my perspective, the Center should not have disclosed the personal items pertaining to
you to a patient or patients. Two statutes, the Freedom of Information Law and the Personal Privacy
Protection Law (respectively Articles 6 and 6-A of the Public Officers Law), are relevant to an
analysis of the matter. Because of the language of those statutes, they must be construed together
and in relation to one another.

By way of background, the Freedom of Information Law includes within its coverage all
government agency records and 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 Personal Privacy Protection Law deals in part with the disclosure of records or personal
information by state agencies concerning data subjects. A "data subject" is "any natural person about
whom personal information has been collected by an agency" [Personal Privacy Protection Law,
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)]. For purposes of that statute, 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)].

With respect to disclosure, 96(1) of the Personal Privacy Protection Law 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 involves a situation 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." Therefore, if a state agency cannot
disclose records pursuant to 96 of the Personal Protection Law, it is precluded from disclosing to
the public under the Freedom of Information Law.

Based on judicial interpretations, disclosure of a public employee's home address, home
phone number or social security number, absent the consent of a data subject, constitutes an
unwarranted invasion of personal privacy. One element of a series of decisions is the finding that
public officers and employees enjoy a lesser degree of privacy than others, for it has been found in
various contexts that those individuals are required to be more accountable than others. The courts
have determined that, as a general rule, records that are relevant to the performance of the official
duties of a public officer or employee 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 items relating
to public officers or employees are irrelevant to the performance of their 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, dealing with membership in a union;
Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a
check payable to a municipal attorney that could indicate how that person spends his/her money;
Seelig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social security numbers].

Because the Center is part of a state agency subject to the Personal Privacy Protection Law,
I believe that it is precluded from releasing records to the public the disclosure of which would
constitute an unwarranted invasion of personal privacy. Pertinent to the matter is a decision cited
earlier, Seelig v. Sielaff, supra. In Seelig, 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, 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).

While a local government may opt to disclose personal information, even when disclosure would
result in an unwarranted invasion of personal privacy, a state agency subject to the Personal Privacy
Protection Law would be prohibited from so doing.

I note that 96(1)(b) of the Personal Privacy Protection Law may permit the disclosure of
personal information to an agency's staff, but that the authority to do so is limited. That provision
permits, but does not require, the disclosure of personal information relating to a data subject when
the disclosure is:

"to those officers and employees of, and to those who contract with,
the agency that maintains the record if such disclosure is necessary to
the performance of their official duties pursuant to a purpose of the
agency required to be accomplished by statute or executive order or
necessary to operate a program specifically authorized by law..."

In sum, if the patients are not employees of the Center, I believe that the Personal Privacy
Protection Law prohibits the disclosure of an employee's home address, home telephone and social
security numbers to patients or other members of the public without the consent of the employee.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: John V. Tauriello
Sherry Gold