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FOIL-AO-17991

 

                                                                                                February 8, 2010

 

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear:

            As you are aware, I have received your letter and the materials relating to it.  The primary issue involves a denial of a request made to the Village of Southampton for copies of “all secondary employment requests for all members of the Police Department” from 2006 through 2009, as well as the approvals and denials of those requests.  The Village Clerk/Treasurer wrote that the Chief of Police and the PBA “are taking the position that under NYS Civil Rights Law Sec 50-a, these are confidential records and are not to be released.” You also asked “whether it is legal for a FOIL appeals officer to be the same person who is responsible for fielding initial FOIL requests, the records access officer.”

            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 (k) of the Law.

            The initial exception to rights of access, §87(2)(a), pertains to records that “are specifically exempted from disclosure by state or federal statute.”  One such statute is §50-a of the Civil Rights Law.  However, in my view, in consideration of its precise specific language, that provision is inapplicable in the context of your request. Section 50-a pertains to police officers and states in relevant part that “[a]ll personnel records, used to evaluate performance toward continued employment or promotion...shall be considered confidential and not subject to inspection or review without the express written consent of such police officer...except as may be mandated by lawful court order.”  The kinds of records at issue, those involving requests by police officers to engage in outside employment, are clearly not “used to evaluate performance toward continued employment or promotion.”  Because that is so, I do not believe that §50-a of the Civil Rights Law serves as a basis for denying access to the records in question.  Rather, I believe that the provisions of the Freedom of Information Law govern, and that three of the exceptions are pertinent to an analysis of rights of access.

            Section 87(2)(b) of the Freedom of Information Law permits an agency to withhold records or portions of records when disclosure would result in “an unwarranted invasion of personal privacy.”  Although 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 and employees.  It is clear that those persons enjoy a lesser degree of privacy than others, for it has been found in various contexts that they are required to be more accountable than others.  Further, the courts have found that, as a general rule, records that are relate to such persons’ official duties 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 NYS2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD d 309 (1977), aff'd 45 NY2d 954 (1978); Sinicropi v. County of Nassau, 76 AD2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS2d 309, 138 AD2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's 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].

            From my perspective, because there must be permission granted to engage in outside employment, it is clear that the records relating to a request to do are relevant to one’s duties.  Issues relating to outside employment might involve the possibility of a conflict of interest or other ethical consideration, the amount of time spent in outside employment, personal safety, or other similar matters.  That being so, I do not believe that the names of those seeking permission to engage in outside employment would constitute an unwarranted invasion of personal privacy.  Other details, such as the identity of a prospective private sector employer, could in my opinion be withheld.  In short, where a police officer is employed while off duty would, in my view, constitute an unwarranted invasion of personal privacy, unless the employment is with a government agency. 

            In a somewhat related vein, I note that §87(2)(f) authorizes an agency to withhold records insofar as disclosure could “endanger the life or safety of any person.”  If an officer is granted permission to engage in outside employment with a firm that provides security services, for example, the nature of the outside employment would, in my opinion, be public.  However, the portion of a record indicating the identity of the person or firm who hired the police officer might, if disclosed, endanger one’s life or safety.

            The remaining provision of significance concerns communications between or among government agency officers or employees.  Specifically, §87(2)(g) permits an agency, such as a village, to withhold records 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.

            A request by an officer to engage in outside employment could, in my view, be withheld.  In short, a request would not likely consist of any of the items required to be disclosed pursuant to subparagraphs (i) through (iv) of §87(2)(g).  However, a decision to grant or deny such a request would be a final agency determination that would be accessible under subparagraph (iii).

            In sum and in consideration of the foregoing, I believe that those portions of the records sought indicating the identities of those officers who have sought outside employment, the determination to grant or deny those requests, and the nature of the outside employment must be disclosed to comply with law.  Other portions of the records that indicate the identity of the person or firm that employs an officer may, in my opinion, may be withheld.  If, however, the employment is with an entity of government, information of that nature would be accessible, for the fact of government employment is itself public.

            Lastly, the Freedom of Information Law in §89(1) requires the Committee on Open Government to promulgate general rules and regulations concerning the procedural implementation of that statute.  The Committee has done so, and its regulations appear in 22 NYCRR Part 1401.  In turn, §87(1) requires the governing body of public corporation, i.e., the board of trustees in a village, to adopt its own rules and regulations consistent with those promulgated by the Committee and with the statute.  One element of the Committee’s regulations involves the designation of a “records access officer”, the person having the initial responsibility to coordinate an agency’s response to requests for records.  Another involves the designation of a person or body to determine appeals following denials of access.  Section 1401.7(b) of the regulations states in relevant part that: “The records access officer shall not be the appeals officer.”

            In an effort to enhance compliance with an understanding of applicable law, copies of this opinion will be forwarded to Village officials.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc:  Board of Trustees
Stephen Funsch
Chief of Police