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FOIL-AO-13745

December 2, 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 facts presented in your correspondence.

Dear

As you are aware, I have received your correspondence and the materials attached to it. You
have sought assistance in obtaining records identifying "non-instructional employees receiving
Medicare Reimbursement" from the Canastota Central School District. The Superintendent denied
your request on the ground that disclosure would result in an "Unwarranted Invasion of Personal
Property" [sic].

In this regard, I offer the following comments.

First, 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".
Other provisions pertaining to the protection of personal privacy are found in the provision cited by
the Superintendent, §89(2).

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].

It is noted that in Matter of Wool, the applicant requested a list of employees of a town
"whose salaries were subject to deduction for union membership dues payable to Civil Service
Employees Association...". In determining the issue, the Court held that:

"...the Legislature has established a scale to be used by a
governmental body subject to the 'Freedom of Information Law' and
to be utilized as well by the Court in reviewing the granting or denial
of access to records of each governmental body. At one extreme lies
records which are 'relevant or essential to the ordinary work of the
agency or municipality' and in such event, regardless of their personal
nature or contents, must be disclosed in toto. At the other extremity
are those records which are not 'relevant or essential' - which contain
personal matters wherein the right of the public to know must be
delicately balanced against the right of the individual to privacy and
confidentiality.

"The facts before this Court clearly are weighted in favor of
individual rights. Membership or non-membership of a municipal
employee in the CSEA is hardly necessary or essential to the ordinary
work of a municipality. 'Public employees have the right to form,
join and participate in, or to refrain from forming, joining or
participating in any employee organization of their choosing.'
Membership in the CSEA has no relevance to an employee's on-the-
job performance or to the functioning of his or her employer."

Consequently, it was held that portions of records indicating membership in a union could
be withheld as an unwarranted invasion of personal privacy. Based on the Wool decision, it might
be contended that whether a public employee is reimbursed for Medicare or covered by health
insurance has no relevance to the performance of that person's official duties, and that, therefore,
such information may be withheld.

From my perspective, such a conclusion would be overly restrictive. In the context of your
inquiry, the taxpayers are reimbursing particular persons and, in my view, records of that nature must
always be disclosed. Insofar as those or related records include information concerning the nature
of an illness or medical condition, that information, is in my view, nobody's business and may be
withheld, for disclosure would indeed constitute an unwarranted invasion of personal privacy. A
record indicating payment or reimbursement is in my opinion readily distinguishable from that
involving an intimate detail of one's life.

In a statement concerning the intent and utility of the Freedom of Information Law, the Court
of Appeals, the state's highest court, asserted 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 foregoing, it might appropriately be contended that the need to enable the public
to make informed choices and provide a mechanism for exposing waste or abuse must be balanced
against the possible infringement upon the privacy of a present or former public officer or employee.
The magnitude of an invasion of privacy may be conjectural and must in many instances be
determined subjectively. In the context of your request, it is my view that a disclosure merely
indicating that a present or former public officer or employee receives a benefit at public expense
would not represent or reveal an intimate detail of one's life.

Consequently, I believe that the names of those receiving reimbursement must be disclosed to
comply with the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Education
Harry T. Kilfoile, Jr.
Christina Arno