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FOIL-AO-16451

 

February 8, 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.

Dear

As you are aware, I have received your letter in which you sought an advisory opinion concerning a request for:

“...an updated list of all WCC (Westchester Community College) employees that are CSEA members, agency fee payers, confidential secretaries and any others represented by CSEA under the present Collective Bargaining Agreement between CSEA and Westchester County.”

The College denied the request based on an opinion rendered by this office in 1995, which referred to a judicial decision rendered nearly thirty years ago that involved equivalent information (Matter of Wool, Supreme Court, Nassau County, NYLJ, November 22, 1977). The court in Wool determined that disclosure would constitute an unwarranted invasion of personal privacy because union membership is irrelevant to the performance of public employees’ duties. It is your view that the rationale for withholding the information at issue is “unclear” and that employees’ names and titles, as well as job specifications are public, and that many such titles indicate that employees hold “unionized civil service position[s].”

I agree, and 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. The only exception to rights of access of significance in my view is §87(2)(b). That provision permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion 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.

In Wool, the applicant requested a list of employees of a town "whose salaries were subject to deduction for union membership dues payable to Civil Service Employees Association...". In determining the issue, the Court held that:

"...the Legislature has established a scale to be used by a governmental body subject to the 'Freedom of Information Law' and to be utilized as well by the Court in reviewing the granting or denial of access to records of each governmental body. At one extreme lies records which are 'relevant or essential to the ordinary work of the agency or municipality' and in such event, regardless of their personal nature or contents, must be disclosed in toto. At the other extremity are those records which are not 'relevant or essential' - which contain personal matters wherein the right of the public to know must be delicately balanced against the right of the individual to privacy and confidentiality.

"The facts before this Court clearly are weighted in favor of individual rights. Membership or non-membership of a municipal employee in the CSEA is hardly necessary or essential to the ordinary work of a municipality. 'Public employees have the right to form, join and participate in, or to refrain from forming, joining or participating in any employee organization of their choosing.' Membership in the CSEA has no relevance to an employee's on-the-job performance or to the functioning of his or her employer."

Consequently, it was held that portions of records indicating membership in a union could be withheld as an unwarranted invasion of personal privacy.

It is emphasized that the holding in Wool was prepared under the Freedom of Information Law as originally enacted in 1974; that statute was repealed and replaced in 1978. Further, over the course of three decades, numerous judicial decisions have been rendered, and I believe that a court considering the same issue today would reach a different conclusion.

In a 1992 decision of the Court of Appeals in which the Court considered “the essence of the exemption” concerning privacy, it referred to information “that would ordinarily and reasonably be regarded as intimate, private information” (Hanig v. State Department of Motor Vehicles, 79 NY2d 106, 112). From my perspective, membership in a public employee union could hardly be considered intimate.

It is also noted that several judicial decisions, both New York and federal, pertain to records about individuals in their business or professional capacities indicate that the records are not of a “personal nature.” For instance, one involved a request for the names and addresses of mink and ranch fox farmers from a state agency (ASPCA v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). In granting access, the court relied in part and quoted from an opinion rendered by this office in which it was advised that "the provisions concerning privacy in the Freedom of Information Law are intended to be asserted only with respect to 'personal' information relating to natural persons". The court held that:

"...the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence. In interpreting the Federal Freedom of Information Law Act (5 USC 552), the Federal Courts have already drawn a distinction between information of a 'private' nature which may not be disclosed, and information of a 'business' nature which may be disclosed (see e.g., Cohen v. Environmental Protection Agency, 575 F Supp. 425 (D.C.D.C. 1983)."

Like the New York Freedom of Information Law, the federal Act includes an exception to rights of access designed to protect personal privacy. Specifically, 5 U.S.C. 552(b)(6) states that rights conferred by the Act do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." In construing that provision, federal courts have held that the exception:

"was intended by Congress to protect individuals from public disclosure of 'intimate details of their lives, whether the disclosure be of personnel files, medical files or other similar files'. Board of Trade of City of Chicago v. Commodity Futures Trading Com'n supra, 627 F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EOA, 484 F.2d 843, 845 (4th Cir. 1973). Although the opinion in Rural Housing stated that the exemption 'is phrased broadly to protect individuals from a wide range of embarrassing disclosures', 498 F.2d at 77, the context makes clear the court's recognition that the disclosures with which the statute is concerned are those involving matters of an intimate personal nature. Because of its intimate personal nature, information regarding 'marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payment, alcoholic consumption, family fights, reputation, and so on' falls within the ambit of Exemption 4. Id. By contrast, as Judge Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399, the decisions of this court have established that information connected with professional relationships does not qualify for the exemption" [Sims v. Central Intelligence Agency, 642 F.2d 562, 573-573 (1980)].

In Cohen, the decision cited in ASPCA v. Department of Agriculture and Markets, supra, it was stated pointedly that: "The privacy exemption does not apply to information regarding professional or business activities.." (supra, 429).

In short, in my opinion and as indicated in the decisions cited above, the exception concerning privacy does not apply to a record identifying entities or individuals in relation to their business or professional capacities. Moreover, as you suggested, disclosure of a public employee’s title alone often indicates that he or she is a member of a union. That being so, and in consideration of the preceding commentary, I do not believe that there is a basis for withholding records or portions of records specifying that public employees are members of a public employee union.

Lastly, it is emphasized that the Freedom of Information Law is permissive. Although an agency may withhold records in accordance with the grounds for denial appearing in §87(2), the Court of Appeals has held that the agency is not obliged to do so and may choose to disclose. As stated in that unanimous decision: "...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. Therefore, even though it may be contended that the information may be withheld, the County has no obligation to do so.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive director

RJF:tt