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 FOIL-AO-13871

February 12, 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 facts presented in your correspondence.

Dear

I have received your letter in which you sought an advisory opinion concerning the propriety
of a denial of your request made under the Freedom of Information Law for records of the Lake
George Park Commission.

Among the records sought were "the employment application and FOILable records of
receptionist Kitty Ledinham, the disposition of any post complains and/or disciplinary action taken,
if any." In response, you were informed that the employee in question was not the subject of any
complaint other than yours and that the employment application is "exempt from disclosure under
§87 (2)(b) of the Public Officers law because disclosure would constitute an unwarranted invasion
of personal privacy."

In this regard, I offer the following comments.

First, when an agency indicates that it does not maintain or cannot locate a record, an
applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of
Information Law provides in part that, in such a situation, on request, an agency "shall certify that
it does not have possession of such record or that such record cannot be found after diligent search."
If you consider it worthwhile to do so, you could seek such a certification.

Second, based on the judicial interpretation of the Freedom of Information Law, it is likely
that portions of the employment applicant must be disclosed.

By way of background, 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. As suggested in the response to your request, relevant to the matter
is §87(2)(b), which states that an agency may withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy."

Based on the judicial decision, 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 those individuals are
required to be more accountable than others. The courts have found 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; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning
disclosure of social security numbers].

In conjunction with the foregoing, I note that it has been held by the Appellate Division,
Third Department, that disclosure of a public employee's educational background would not
constitute an unwarranted invasion of personal privacy and must be disclosed [see Ruberti, Girvin
& Ferlazzo v. NYS Division of State Police, 641 NYS 2d 411, 218 AD 2d 494 (1996)].

Additionally, in the lower court decision rendered in Kwasnik v. City of New York,
(Supreme Court, New York County, September 26, 1997), the court cited and relied upon an opinion
rendered by this office and held that those portions of applications or resumes, including information
detailing one's prior public employment, must be disclosed. The Court quoted from the Committee's
opinion, which stated that:

"If, for example, an individual must have certain types of experience,
educational accomplishments or certifications as a condition
precedent to serving in [a] particular position, those aspects of a
resume or application would in my view be relevant to the
performance of the official duties of not only the individual to whom
the record pertains, but also the appointing agency or officers ... to the
extent that records sought contain information pertaining to the
requirements that must have been met to hold the position, they
should be disclosed, for I believe that disclosure of those aspects of
documents would result in a permissible rather than an unwarranted
invasion [of] personal privacy. Disclosure represents the only means
by which the public can be aware of whether the incumbent of the
position has met the requisite criteria for serving in that position.

Quoting from the opinion, the court also concurred with the following:

"Although some aspects of one's employment history may be
withheld, the fact of a person's public employment is a matter of
public record, for records identifying public employees, their titles
and salaries must be prepared and made available under the Freedom
of Information Law [see §87(3)(b)]."

Items within an application for employment or a resume that may be withheld in my view would
include social security numbers, marital status, home addresses, hobbies, and other details of one's
life that are unrelated to the position for which he or she was hired.

In affirming the decision of the Supreme Court, the Appellate Division found that:

"This result is supported by opinions of the Committee on Open
Government, to which courts should defer (see, Miracle Mile Assocs.
v. Yudelson, 68 AD2d 176, 181, lv denied 48 NY2d 706), favoring
disclosure of public employees' resumes if only because public
employment is, by dint of FOIL itself, a matter of public record
(FOIL-AO-4010; FOIL-AO-7065; Public Officers Law §87[3][b]).
The dates of attendance at academic institutions should also be
subject to disclosure, at least where, as here, the employee did not
meet the licensing requirement for employment when hired and
therefore had to have worked a minimum number of years in the field
in order to have qualified for the job. In such circumstances, the
agency's need for the information would be great and the personal
hardship of disclosure small (see, Public Officers Law §89[2][b][iv])"
[262 AD2d 171, 691 NYS 2d 525, 526 (1999)].

In sum, again, I believe that the details within an employment applicant application that are
irrelevant to the performance of one's duties may generally be withheld. However, based on judicial
decisions, those portions of such a record or its equivalent detailing one's prior public employment
and other items that are matters of public record, general educational background, licenses and
certifications, and items that indicate that an individual has met the requisite criteria to serve in the
position, must be disclosed.

 

 

 

In an effort to resolve the matter, a copy of this opinion will be sent to the Commission.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Bruce E. Young
Michael P. White