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FOIL-AO-14461

January 12, 2004

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 information presented in your correspondence.

Dear

As you are aware, I have received your letter of December 19 in which you sought an advisory opinion concerning rights of access to records of the New York City Police Department’s "Application Processing Division."

You indicated that, to your knowledge, the records of the Division consist of a potential police officer’s application, an employment questionnaire, and the results of any "pre-employment investigations" prepared by staff. The Department denied your request, citing §50-a of the Civil Rights Law and §87(2)(b) of the Freedom of Information Law pertaining to unwarranted invasions of personal privacy. The officer of your interest was hired by the Department but was later convicted of a crime and removed from his position. Consequently, it is your view that §50-a is inapplicable and that "personal information could easily be redacted."

I agree with your contentions and offer the following comments.

As a general matter, 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 initial ground for denial of access, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §50-a of the Civil Rights Law. However, its language and judicial construction indicate that it is not applicable in the situation that you described. That statute exempts from disclosure personnel records pertaining to police officers that are used "to evaluate performance toward continued employment or promotion." An employment application and records associated with an application would not be used to evaluate performance toward continued employment or promotion. Moreover, it has been held §50-a cannot be asserted when an individual is no longer employed as a police officer [Village of Brockport v. Calandra,745 NYS2d 662, 191 Misc. 2d 718 (2002); aff’d 758 NYS2d 877, 305 AD2d 1030 (2003)].
Assuming that §50-a of the Civil Rights Law does not apply, I believe that the Freedom of Information Law would govern rights of access. I note in this regard that there is nothing in that statute the deals specifically with personnel records. As is so in most instances, the content of those records and the effects of disclosure are the crucial factors in determining rights of access and, conversely, the ability of an agency to deny access to records.

Perhaps most relevant is the provision in the Freedom of Information Law to which the Department apparently referred, §87(2)(b). Based on its judicial interpretation, 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 those persons 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 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 a judicial decision that focused on access to a resume of a person who was later hired by an agency, Kwasnik v. City of New York (Supreme Court, New York County, September 26, 1997), the court quoted from and relied upon an opinion rendered by this office and held that portions of resumes pertaining to applicants who are hired by a government agency must be disclosed in accordance with the previous commentary. The Committee's opinion 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."

I note that Kwasnik was affirmed by the Appellate Division [691 NYS2d 525, 262 AD2d 171 (1999)]. Based on that decision and others dealing involving analogous principles, those portions of a resume or application for employment that are relevant to the performance of one’s duties, must be disclosed. In addition, it has been held that those portions of records indicating one’s general education background must be disclosed [Ruberti, Girvin and Ferlazzo v. NYS Division of State Police, 218 AD2d 494 (1996)].

Other aspects of a resume or application may, in my view, be withheld. Those items pertaining to the applicant who was later hired that are irrelevant to the position, i.e., home address, social security number, marital status, hobbies, etc., may be deleted on the ground that disclosure would constitute an unwarranted invasion of the applicant’s privacy. In addition, when there is a background investigation, it is likely that records include the identities of others, such as prior employers, neighbors, and others. If that is so, I believe that personally identifying details pertaining to those persons may be deleted to protect against an unwarranted invasion of their privacy.

Lastly, at the time that your letter was transmitted to this office, seventeen days had passed without having received a response since the receipt of your appeal by the Department. As you are aware, §89(4)(a) of the Freedom of Information Law requires that an agency must determine an appeal within ten business days of it receipt by either granting access to the records or fully explaining in writing the reasons for further denial. If an agency fails to respond within the statutory time, the person seeking the records may consider the appeal to have been denied and be deemed to have exhausted his or her administrative remedies. In that circumstance, he or she may seek judicial review of the denial of access by initiating a proceeding under Article 78 of the Civil Practice Law and Rules [see Floyd v. McGuire, 87 AD2d 388, appeal dismissed, 57 NY2d 774 (1982)].

In an effort to enhance compliance with and understanding of the matter, and to attempt to avoid litigation, a copy of this opinion will be forwarded to the person at the Department designated to determine appeals.

I hope that I have been of assistance.

RJF:jm

cc: Jonathan David