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FOIL-AO-16157

September 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 material attached to it.

Having been denied the opportunity to take a competitive examination administered by the City of Yonkers, you requested "copies of the applications of those persons they deemed were qualified," as well as "the qualifications and application for anyone that is currently holding [a particular] position provisionally or has held it since 01/01/2004." The City denied the request, stating that:

"By gaining access to the applications, even if redacted, and the employment history of unnamed individuals, it would still be possible to identify these individuals and thus, identify the names of those persons who took and failed the examination. Consequently, the applications in question, despite having some information deleted may be withheld from inspection pursuant to Civil Service regulations and §89(2)(b) of the Public Officers Law, as an unwarranted invasion of personal privacy, not limited to disclosure of employment history."

Based on the terms of the Freedom of Information Law and its judicial interpretation, I respectfully disagree with the City’s response to your request.

In this regard, first, §89(7) of the Freedom of Information Law states that an agency, such as the City of Yonkers , is not required to disclose the name of an applicant for appointment to public employment. Therefore, although the City could choose disclose the identities of the applicants, it would not be obliged to do so.

Second, notwithstanding the foregoing, I believe that some aspects of the applications regarding those who were not hired by the City, as well as a variety of details regarding any incumbent of the position in question, must be disclosed.

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 (j) of the Law.
It is emphasized that the phrase quoted in the preceding sentence indicates that there may be instances in which portions of records might justifiably be withheld, while the remainder must be disclosed.

Third, as the City suggested, one of the grounds for denial of access, §87(2)(b), authorizes an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." In my view, in consideration of §§87(2)(b)and 89(7), the City might properly withhold any portion of an application for employment pertaining to a person who was not hired which if disclosed could reasonably be used to identify an applicant. Depending on the uniqueness of the content of an application, the extent to which portions of an application may be withheld may differ from one application to the next. However, I believe that a blanket denial of access to the applications is inconsistent with law. I point out that in a case in which an individual wanted to compare his qualifications with the qualifications of others, it was determined that resumes of those others must be disclosed, following the deletion of personally identifying details [see Harris v. City of University of New York, Baruch College, 114 AD 2d 805 (1985)].

With respect to the records pertaining to the incumbent of a position, the judicial interpretation of the Freedom of Information Law indicates 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].

I note, too, that it has been held 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 a recent judicial decision, 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 those portions of resumes, including information detailing one's prior public employment must be disclosed. 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.

"The Opinion further stated that:

"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)]."

In short, it is likely that some aspects of the application of an incumbent must be disclosed, while others could be withheld to protect personal privacy.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt
cc: Kevin D. Crozier
Frank J. Rubino