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March 24, 1993

 

 

Mr. John J. Culkin
49 Manor Oak Drive
Amherst, N.Y. 14228

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 Mr. Culkin:

I have received your letter of March 11 in which you asked
whether "redacted evaluations of State employees" are available
under the Freedom of Information Law.

In this regard, I offer the following comments.

First, the Freedom of Information Law is based on 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
section 87(2)(a) through (i) of the Law. It is also noted that the
introductory language of §87(2) refers to the capacity to withhold
"records or portions thereof" that fall within the scope of the
grounds for denial that follow. The phrase quoted in the preceding
sentence indicates that a single record may be accessible or
deniable in whole or in part. That phrase, in my view, also
imposes an obligation upon agency officials to review records
sought in their entirety to determine which portions, if any, may
justifiably be withheld. Therefore, even though some aspects of a
record may be withheld, the remainder would be available.

Second, in my view, two of the grounds for denial are relevant
to ascertaining rights of access to employees' evaluations.

Section 87(2)(b) of the Freedom of Information Law permits an
agency to withhold records to the extent that disclosure would
constitute "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 employees. First, it is
clear that public employees enjoy a lesser degree of privacy than
others, for it has been found in various contexts that public
employees are required to be more accountable than others.
Further, with regard to records pertaining to public employees, the
courts have found that, as a general rule, records that are
relevant to the performance of a public employee' s 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 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 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].

Another ground for denial of significance, §87(2)(g), states
that an agency may 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. In my view, an evaluation would clearly
constitute intra-agency material.

Although the contents of evaluations may differ, I believe
that a typical evaluation contains three components.

One component involves a description of the duties to be
performed by a person holding a particular position, or perhaps a
series of criteria reflective of the duties or goals to be achieved
by a person holding that position. Insofar as evaluations contain
information analogous to that described, I believe that those
portions would be available. In terms of privacy, a duties
description or statement of goals would clearly be relevant to the
performance of the official duties of the incumbent of the
position. Further, that kind of information generally relates to
the position and would pertain to any person who holds that
position. As such, I believe that disclosure would result in a
permissible rather than an unwarranted invasion of personal
privacy. In terms of §87(2)(g), a duties description or statement
of goals would be reflective of the policy of an agency regarding
the performance standards inherent in a position and, therefore, in
my view, would be available under §87(2)(g)(iii). It might also be
considered factual information available under §87(2)(g)(i).

The second component involves a reviewer's subjective analysis
or opinion of how well or poorly the standards or duties have been
carried out or the goals have been achieved. In my opinion, that
aspect of an evaluation could be withheld, both as an unwarranted
invasion of personal privacy and under §87(2)(g), on the ground
that it constitutes an opinion concerning performance.

A third possible component is often a final rating, i.e.,
"good", "excellent", "average", etc. Any such final rating would
in my opinion be available, assuming that any appeals have been
exhausted, for it would constitute a final agency determination
available under §87(2)(g)(iii), particularly if monetary award is
based upon a rating. Moreover, a final rating concerning a public
employee's performance is relevant to that person's official duties
and therefore would not in my view result in an unwarranted
invasion of personal privacy if disclosed.

Lastly, as you requested, enclosed is a copy of the
Committee's latest report. Also, mail may be sent to this office
by fax. At present, our fax number is (518) 473-2464.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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