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FOIL-AO-17126

                                                                                                April 18, 2008

 

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 correspondence relating to it.  You have sought an advisory opinion concerning the propriety of a partial denial of your request made under the Freedom of Information Law to Erie County.  The records withheld involve the resume, application for employment and educational background of a specific County employee, and the denial was sustained following your appeal based on a contention that disclosure “would constitute an unwarranted invasion of privacy pursuant to Public Officers Law §87(2).”  You were informed that you could further appeal in accordance with an Erie County Local Law No. 8.

            Based on judicial precedent, I believe that substantial portions of the records in question must be disclosed.  In this regard, I offer the following comments.

            By way of background, 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. Most relevant is §87(2)(b), which states that an agency may withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy."

            Judicial decisions clearly indicate 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].

            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)].”

            Items within an application for employment or a resume that may be withheld in my view would include social security numbers, marital status, home addresses, hobbies, and other details of one’s life that are unrelated to the position for which he or she was hired.

            In affirming the decision of the Supreme Court, the Appellate Division found that:

“This result is supported by opinions of the Committee on Open Government, to which courts should defer (see, Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181, lv denied 48 NY2d 706), favoring disclosure of public employees’ resumes if only because public employment is, by dint of FOIL itself, a matter of public record (FOIL-AO-4010; FOIL-AO-7065; Public Officers Law §87[3][b]).  The dates of attendance at academic institutions should also be subject to disclosure, at least where, as here, the employee did not meet the licensing requirement for employment when hired and therefore had to have worked a minimum number of years in the field in order to have qualified for the job.  In such circumstances, the agency’s need for the information would be great and the personal hardship of disclosure small (see, Public Officers Law §89[2][b][iv])” [262 AD2d 171, 691 NYS 2d 525, 526 (1999)].

            In sum, again, I believe that the details within a resume or an employment application that are irrelevant to the performance of one’s duties may generally be withheld. However, based on judicial decisions, those portions of such a record or its equivalent detailing one’s prior public employment and other items that are matters of public record, general educational background, licenses and certifications, and items that indicate that an individual has met the requisite criteria to serve in the position,  must be disclosed.

            Lastly, when informing you of an opportunity to submit a second appeal, reference was made to Erie County Local No. 8-1978.  In a decision rendered more than twenty years ago, Reese v. Mahoney (Supreme Court, Erie County, June 28, 1984), the court focused on the portion of that local law concerning a second appeal and essentially found it to be invalid.  It was stated that “a two-tiered appeals procedure before Article 78 CPLR review can be had, would be sufficient to invalidate the local law....as being inconsistent with the state law’s single tier appeals procedure.”  Under the Freedom of Information Law, when a request is denied, the denial may be appealed, and if the appeal is denied, the person denied access may initiate a judicial proceeding under Article 78 of the Civil Practice Law and Rules.  Under Local Law No. 8, an Article 78 proceeding cannot be initiated until a second appeal is made and determined, and the court found that “additional restriction” to constitute a basis for invalidating the local law.  That being so, according to the decision, you may choose to challenge the County’s denial of your request in court.  However, in an effort to avoid litigation and to enhance understanding and compliance with the Freedom of Information Law, a copy of this opinion will be sent to County officials.

           

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:tt

cc: Christopher M. Grant
John Greenan
George Zimmerman