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FOIL-AO-15487

August 26, 2005

M E M O R A N D U M

TO:

FROM: Robert J. Freeman, Executive Director

SUBJECT: Disclosure of Employee Names

Based upon our conversation earlier today, the primary issue that you raised involves the disclosure of the names of four employees of the Adirondack Park Agency (APA) who are identified in a letter addressed to Chairman Whaley by Dineen Ann Riviezzo, the State Inspector General.

In brief, the Inspector General’s letter deals in part with allegations that the employees, while using Agency computers, obtained and transmitted inappropriate images via email. The Inspector General referred to the APA’s computer policy, which states in part that:

"The use of Agency computers for illegal and unethical activities is strictly prohibited. The use of Agency computers to communicate or store obscene, racist, sexist, threatening, harassing or otherwise objectionable language or images is strictly prohibited."

Following the investigation by the Inspector General, she wrote that:

"We showed each of the five employees copies of the inappropriate images located in their e-mails and/or on their computer hard drives. Each acknowledged responsibility for the existence of the materials."

From my perspective, because the five employees admitted to having obtained the inappropriate images on their computers, their names as they appear in the letter from the Inspector General are accessible pursuant to the Freedom of Information Law.

In this regard, I offer the following comments.

First, 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.

Second, there is nothing in the Freedom of Information Law that deals specifically with personnel records or 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. Two of the grounds for denial are relevant to an analysis of the matter; neither, however, could in my view serve to justify a denial of access.

Pertinent is §87(2)(b), which permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy". In addition, §89(2)(b) provides a series of examples of unwarranted invasions of personal privacy.

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. 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, 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].

The other ground for denial of significance, §87(2)(g), states that an agency may withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
In consideration of the acknowledgment of responsibility for the existence of the materials at issue by the five employees, I believe that the portions of the Inspector General’s letter identifying those employees consist of factual information are accessible under subparagraph (i) of §87(2)(g). Further, it is clear that the matter relates to the performance of the duties of those employees and their failure to comply with APA policy. I note, too, that numerous judicial decisions specify that records indicating findings or admissions of misconduct on the part of public employees are accessible under the Freedom of Information Law.

If you would like to discuss the matter further, please do not hesitate to contact me.

RJF:jm