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FOIL-AO-15725

 

December 29, 2005

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 and the materials attached to it. You expressed concern that the SUNY College at Farmingdale has improperly disclosed personal information about you and other faculty members.

In this regard, it is my understanding that the requests leading to the disclosures were made by one individual and were extensive. I have discussed the matter with officials at SUNY’s central offices, and it was explained that the records at issue involve hundreds of pages and an arduous, often line by line review of their content to ascertain which portions could or must be withheld. Some of the items to which you referred were, in my view, improperly disclosed. However, based on discussions with SUNY staff, the disclosure of those items was inadvertent. In other instances, I believe that SUNY would have had the authority to deny access, but not the obligation to do so.
To consider your contentions properly, two statutes must be analyzed, the Freedom of Information Law and the Personal Privacy Protection Law. The former is broad in its scope, for it pertains to all records of an agency, such as the State University and its component institutions, and the term "record" for purposes of that statute is defined in §86(4) to mean:

"...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

The latter pertains to personal information maintained by or for state agencies, and for purposes of that law, "record" is defined in §92(9) to mean:

"...any item, collection or grouping of personal information about a subject which is maintained and is retrievable by use of the name or other identifier of the data subject irrespective of the physical form or technology used to maintain such personal information."

A "data subject", according to §92(3) of the Personal Privacy Protection Law, is a "natural person about whom personal information has been collected by an agency."

With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No agency may disclose any record or personal information", except in conjunction with a series of exceptions that follow. One of those exceptions involves a situation in which a record is "subject to article six of this chapter [the Freedom of Information Law], unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter." Section 89(2-a) of the Freedom of Information Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision two of this section if such disclosure is prohibited under section ninety-six of this chapter." Therefore, when a state agency cannot disclose records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing to the public under the Freedom of Information Law.

A series of judicial decisions represent a general finding 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 determined 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; Seelig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social security numbers].

Because the State University is a state agency subject to the Personal Privacy Protection Law, I believe that it and the College, as a component of the University, are precluded from releasing records to the public the disclosure of which would constitute an unwarranted invasion of personal privacy. Pertinent to the matter is a decision cited earlier, Seelig v. Sielaff, supra. In Seelig, the lower court enjoined a New York City agency from releasing the social security numbers of correction officers without their written consent. While the Appellate Division agreed that disclosure of social security numbers would result in an unwarranted invasion of correction officers' privacy, the Court unanimously reversed and vacated the judgment because the agency involved is an entity of local government. Specifically, it was found that:

"The injunctive relief granted by the IAS Court was based upon Public Officers Law §92 (1), part of this State's Personal Privacy Protection Law. That law by its own terms excepts the judiciary, the State Legislature, and 'any unit of local government' from its purview. Consequently, the relief granted against the respondents was improper" (id., 299).

While a local government may opt to disclose personal information, even when disclosure would result in an unwarranted invasion of personal privacy, a state agency subject to the Personal Privacy Protection Law would be prohibited from so doing.

I would agree that disclosure of the identities of one’s private employers would constitute an unwarranted invasion of personal privacy [see Freedom of Information Law, §89(2)(b)(i)] and should have been withheld. I would agree, too, that disclosure of one’s home telephone number and social security number would result in an unwarranted invasion of personal privacy. With respect to certain of the other items to which you referred, it is questionable whether SUNY was obliged to redact them. For instance, while marital status may be unrelated to one’s duties, the fact that a person is married or, for that matter, divorced, involves matters that can be learned through requests to municipal clerks who are obliged to disclose [see e.g., Domestic Relations Law, §§19 and 235(3)]. One’s professional affiliations often relate to the performance of his or her official duties and would not, in my opinion, be so intimate or personal that those referenced could be characterized, if disclosed, as an unwarranted invasion of personal privacy. On the other hand, portions of a resume, for example, that indicate a person’s activities with a religious organization would in my view be clearly personal and, therefore, exempt from disclosure.

As suggested earlier, some of the records that were apparently disclosed could have been withheld in part. However, I do not believe that there would have been a requirement to do so. For example, performance evaluations and affirmative action forms appear to have been disclosed. In my opinion, while portions of those records could have been withheld, SUNY has the discretionary authority to disclose them. Having reviewed their contents, it is clear that they relate to your duties. Because that is so, and in consideration of the analysis offered above concerning unwarranted invasions of personal privacy, I do not believe that a denial on the basis of the exception pertaining to privacy in the Freedom of Information Law or, therefore, the Personal Privacy Protection Law, would have been applicable.

The provision of primary significance concerning the observation reports and forms pertains to communications between and among government officers and employees. Specifically, §87(2)(g) of the Freedom of Information Law permits an agency to 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.

While portions of the evaluations and forms consist of expressions of opinion that may be withheld, others consist of factual information accessible to the public. In this instance, SUNY would not have been obliged to withhold those portions of the reports to which access could have been denied. In short, the Freedom of Information Law is permissive. The state’s highest court has held that although an agency may withhold records in accordance with the exceptions to rights of access, it is not required to do so [see Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)], unless a different provision of law, i.e., the Personal Privacy Protection Law, so directs.

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

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Stacey Hengsterman
Wendy Kowalczyk
Marvin Fischer