January 24, 2007
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.
As you are aware, I have received your letter and materials relating to it.
By way of background, you wrote that a group of parents in the Horseheads School District expressed concerns relating to the behavior of a certain coach, who is also a teacher in the District. The matter was investigated by the District’s attorney who, at the conclusion of the investigation, informed parents that the subject of the inquiry “understands the significance of these issues, and has established strategies to address them prior to the next season.” The attorney, according to your letter, also assured parents that the individual’s “performance improvement plan will be closely monitored by the administrators.”
You requested the “performance improvement plan”, but the District denied the request and indicated that:
“...this personnel document is not a document available under the Freedom of Information Law in that it would constitute an unwarranted invasion of personal privacy of Coach Monks. Had the complaints regarding Coach Monks been substantiated or found to be meritorious so as to constitute formal discipline, we may have reached a different conclusion in this matter.”
If I accurately understand the facts, the performance improvement plan should be disclosed. 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 (j) of the Law.
Second, there is nothing in the Freedom of Information Law that deals specifically with personnel records or personnel files. The nature and content of so-called personnel files may differ from one agency to another and from one employee to another. 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). The contents of those documents are the factors used in determining the extent to which they are available or deniable under the Freedom of Information Law.
Third, based on the judicial interpretation of the Freedom of Information Law, 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].
There are numerous instances in which portions of personnel records are available, while others are not. I would agree that records indicating charges or allegations that could not be proven or substantiated may be withheld. However, from my perspective, a “performance improvement plan” or similar directive should generally be available, irrespective of whether it relates to a complaint or incident. When a board of education establishes goals and objectives to be met by a superintendent of schools, for example, I believe that a document of that nature is public, and that similar documents pertaining to other employees are equally accessible.
In terms of the exception regarding unwarranted invasions of personal privacy, it is clear that the record at issue is relevant if not critical to the performance of the duties of the employee in question. That being so, it appears that it would result in a permissible, not an unwarranted invasion of personal privacy.
A separate exception is also pertinent to an analysis of rights of access. That provision, however, due to its structure, often requires disclosure.
Specifically, §87(2)(g) permits an agency provide in pertinent part 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.
Concerning “instructions to staff that affect the public” and “final agency policy or determinations”, which are generally available, respectively, under subparagraphs (ii) and (iii) of §87(2)(g) of the Freedom of Information Law, there is little decisional law that deals directly with those provisions. Typically, agency guidelines, procedures, staff manuals and the like provide direction to an agency’s employees regarding the means by which they must perform their duties. Some may be “internal”, in that they deal solely with the relationship between an agency and its staff. Others may provide direction in terms of the manner in which staff performs its duties in relation to or that affects the public, which would ordinarily be accessible. To be distinguished would be advice, opinions or recommendations that may be accepted or rejected. An instruction to staff, a policy or a determination, each would represent a matter that is mandatory or directory in nature that would in my view be accessible pursuant to §87(2)(g)(ii). In this instance, it appears that the content in the performance improvement plan represents a mandate that instructs the individual in relation to duties that he performs concerning students. If that is so, the cited provision in my view would require disclosure.
Lastly, in affirming the Appellate Division decision in Capital Newspapers, a decision cited earlier, the state’s highest court found that:
"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (Capital Newspapers v. Burns, supra, 565-566).
Based on the preceding analysis, I believe that the District must disclose the record of your interest.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education
William C. Congdon