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FOIL-AO-18105

                                                                                                May 14, 2010

 

E-Mail

TO:                 

FROM:            Robert J. Freeman, Executive Director

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:

            I have received your letter and hope that you will accept my apologies for the delay in response.

            You wrote that you are “wondering what the qualifications of some of [your] town’s planning board members might be” and asked whether the “resumes of town employees” are accessible under the Freedom of Information Law.  In this regard, I offer the following comments.

            First, §271 of the Town Law, entitled “Planning board, creation, appointment”, indicates at the outset that a town board is authorized to create a planning board by enactment of a local law or ordinance.  There is nothing in the Town Law, however, that specifies or includes reference to the qualifications of those who might serve on a planning board.  Notwithstanding the absence of any particular criteria necessary to serve, a new subdivision 7-a(a) of §271 contains training and attendance requirements and states that:

“Each member of the planning board shall complete, at a minium, four hours of training each year designed to enable such members to more effectively carry out their duties.  Training received by a member in excess of four hours in any one year may be carried over by the member into succeeding years in order to meet the requirements of this subdivision.  Such training shall be approved by the town board and may include, but not limited to, training provided by a municipality, regional or county planning office or commission, county planning federation, state agency, statewide municipal association, college or other similar entity.  Training may be provided in a variety of formats, including but not limited to, electronic media, video, distance learning and traditional classroom training.”

Additionally, paragraphs (b) and (c) of §271(7-a) state that “To be eligible for reappointment to such board, such member shall have completed the training promoted by the town pursuant to this subdivision” and that “The training required by this subdivision may be waived or modified by resolution of the town board when, in the judgment of the town board, it is in the best interest of the town to do so.”

            Second, from my perspective, based on the language of the law and judicial precedent, it is likely that minimal portions of the resumes of planning board members are accessible under the Freedom of Information Law.  Additional information within resumes are frequently available as it pertains to agency employees (as opposed to planning board members, who are not “employees”).  I believe, too, that records indicating that planning board members have met training and attendance requirements.

            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.  Most relevant in the context of your correspondence 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."

            Based on judicial decisions, 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 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, Third Department, 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)].

            Based on the foregoing, because there are no particular qualifications that must be met by members of a planning board, I believe that portions of resumes of planning boards that include references to licenses or certifications, for example, indications of public employment, and general educational background must be disclosed.  In addition, due to the direction provided in §271(7-a) of the Town Law, records indicating training must, in my opinion, be disclosed to enable the public to ascertain whether planning board members are complying with law.  Because those items relate to the performance of their duties, disclosure, in my view, would result in a permissible, not an unwarranted invasion of personal privacy.

            I hope that I have been of assistance.

 

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