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FOIL-AO-13809

January 6, 2003

 

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 correspondence and appreciate your kind words.

You wrote that you are a certified teacher and that you have been employed as a substitute
teacher for several school districts in the vicinity of Ithaca. Since substitutes are typically approved
by boards of education, minutes of meetings include names of substitutes or others hired by a district.
According to your letter, the Lansing Central School District places minutes of meetings of its Board
of Education on the District's website, "and that by searching [your] name, one can determine that
[you] worked for the Lansing school district and make the association that [you are] working for
districts in the area." You have objected to the inclusion of your name in a website and expressed
the belief that its publication "is in violation of § 87.2 (b) and (f) and §89.2 (b) (i) of the Freedom
of Information Law."

In this regard, I offer the following comments.

First, there is nothing in the Freedom of Information Law pertaining to the placement of
records on the internet or an agency's website. In my experience, it is not unusual for a unit of local
government to place minutes of meetings of public bodies on their websites. I note, too, that a
recipient of minutes of a meeting could place the minutes or the contents of minutes on his or
initiative on the internet, with or without approval or consent of the government agency that prepared
those records. Further, when records are accessible under the Freedom of Information Law, it has
been held that they should be made equally available to any person, regardless of one's status, interest
or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378
NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any
showing of need, good faith or legitimate purpose; while its purpose
may be to shed light on government decision-making, its ambit is not
confined to records actually used in the decision-making process.
(Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d
575, 581.) Full disclosure by public agencies is, under FOIL, a public
right and in the public interest, irrespective of the status or need of the
person making the request" [Farbman v. New York City Health and
Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Second, when a board of education takes action during a meeting to employ a particular
person or persons, I believe that §106(1) of the Open Meetings Law requires that the action be
memorialized through the preparation of minutes.

Third, I disagree with your contention that disclosure of your name in minutes placed on
website is "in violation" of the provisions of the Freedom of Information Law to which you referred.
As you are likely aware, 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
provisions to which you referred deal with the ability of a government agency to withhold records
insofar as disclosure would constitute "an unwarranted invasion of personal privacy" or "endanger
the life or safety of any person."

From my perspective, there is nothing secret about the names of substitute teachers; their
identities are made known to students and, indirectly to parents and perhaps others. Further, payroll
records required to be maintained by all agencies must include reference to the name, public office
address, title and salary of every officer or employee of the agency [see Freedom of Information Law,
§87(3)(b)]. While substitute teachers may not be "employees", they are paid by the District, and
records of payments are public. For those reasons, I do not believe that disclosure of substitute
teachers' names would constitute an unwarranted invasion of personal privacy or that it could be
demonstrated that disclosure would endanger their lives or safety.

Lastly, it is emphasized that the Freedom of Information Law is permissive, and that the
Court of Appeals, the state's highest court, has held that an agency may withhold records in
accordance with the grounds for denial, but that it is not required to do so [ Capital Newspapers v.
Burns, 67 NY2d 562, 567 (1986)]. The only instance in which records must be withheld would
involve the case in which a statute prohibits disclosure, and no such statute would be applicable in
this instance.

In short, I believe that the name of a substitute teacher appearing in minutes of a meeting
must be disclosed, and that there is no restriction regarding the publication of minutes on a school
district's website.

 

 

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

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Robert J. Service