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FOIL-AO-16071

July 14, 2006

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 indicated that you serve as chair of a committee of a non-profit organization of SUNY librarians and affiliated members, and that the committee periodically conducts a survey in an effort to prepare for renegotiation of your contract. Although you apparently encountered little difficulty in obtaining the survey data in previous years, one of the SUNY library directors this year refused to participate, and he wrote that:

"...these questions cannot be answered without consulting individual personnel records and there is concern that it may prove illegal for us to extract personnel data from these files and ‘publish’ it. There would be no problem if the request was for salary ranges by rank accompanied by aggregated gender and ethnicity numbers. However, spelling out by individual name one’s gender, ethnicity, experience, rank and title, salary, degrees, etc. appears to be quite inappropriate and open to legal challenge by the individual."

You listed the items sought in the survey and asked initially whether your organization is "allowed to ask" for them. Certainly there is no law that precludes your organization or any person or entity from "asking" for information or records. The second critical question involves the extent to which those items sought must be disclosed under the Freedom of Information Law. The response to that and your intervening questions is somewhat complex, for it might involve a separate statute, the Personal Privacy Protection Law, Article 6-A of the Public Officers Law, §§91-99. That law applies only to state agencies, and it specifically excludes units of local government from its coverage [see definition of "agency" for purposes of the Personal Privacy Protection Law, §92(1)]. Therefore, Personal Privacy Protection Law applies to the State University, but in my view, it does not apply to community colleges, which are generally entities of county government.

The Personal Privacy Protection Law focuses on personal information pertaining to data subjects. A "data subject" is "any natural person about whom personal information has been collected by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal information" is defined to mean "any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject" [§92(7)]. For purposes of the Personal Privacy Protection Law, the term "record" is defined to mean "any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject" [§92(9)].

To the extent that the records identify data subjects, §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, §96(1)(c), 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". Consequently, when a state agency cannot disclose records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the Freedom of Information Law; alternatively, if disclosure of a record would not constitute an unwarranted invasion of personal privacy and if the record is available under the Freedom of Information Law, it may be disclosed under §96(1)(c).

Again, the Personal Privacy Protection Law is not applicable to records maintained by local government agencies. Access to records of those agencies is generally governed by the Freedom of Information Law. That statute, in brief, 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. One of the exceptions, §87(2)(b), authorizes an agency to withhold records or portions thereof that "if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article..."

Unless there is a statute that prohibits disclosure, the Freedom of Information Law is permissive, for an agency may choose to disclose records or portions of records in accordance with the exceptions to rights of access, but it is not required to do so [see Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. Therefore, while community colleges, local government agencies, are permitted to disclose items that they could choose to withhold on the ground that disclosure would result in an unwarranted invasion of personal privacy, state agencies, such as SUNY, that are subject to the Personal Privacy Protection Law, cannot disclose items when so doing would constitute an unwarranted invasion of personal privacy, unless a data subject consents to disclosure.

In consideration of the foregoing, I believe that the key issue involves whether the items that you identified must be disclosed in response a request made pursuant to the Freedom of Information Law. They are as follows:

" a) sex
b) ethnicity
c) previous full-time experience
d) previous part-time experience
e) year appointed
f) starting rank
g) current rank
h) appointment status
i) bargaining unit
j) full time equivalency
k) contract year
l) vacation leave."

Based on judicial decisions, 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, supra. 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 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)]."

That decision was unanimously affirmed by the Appellate Division [262 AD2d 171 (1999)].

As the foregoing analysis and judicial precedent relate to the items to which you referred, with few exceptions, I believe that they must be disclosed. In my opinion, one’s gender ordinarily has little relation to one’s duties. However, an employee’s gender in most instances can be ascertained through that person’s name, and I do not believe that a court would find that the gender of public employees would be considered an item so intimate that disclosure would constitute an unwarranted invasion of personal privacy. I believe, however, that disclosure of one’s race or ethnicity may be withheld by local government agencies and must be withheld by state agencies. An item of that nature clearly would be irrelevant to one’s duties. As suggested above, one’s prior public sector employment experience has been found to be accessible; portions of records indicating employment in the private sector could be withheld by local government agencies, but must be withheld by state agencies. Lastly, I note that records involving leave time used or accrued by public employees, including the days and dates of leave time claimed, have been found by the Court of Appeals to be accessible to the public (see Capital Newspapers, supra).

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

Sincerely,

Robert J. Freeman
Executive Director

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