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March 29, 1993

 

Ms. Josephine Thompson
8 So. Hollywood Avenue
Gloversville, NY 12078

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 Ms. Thompson:

I have received your letter of March 13 in which you sought an
advisory opinion concerning a request for records of the City of
Gloversville.

According to the form attached to your letter, you requested
"a copy of February 1993's Insurance bill from the Preferred
Assurance Co. along with the list of employees' names and amounts
billed by the Insurance Co."

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 (i) of the Law.

Second, relevant in my view is §87(2)(b), which enables an
agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy". In
addition, §89(2)(b) includes a series of examples of unwarranted
invasions of personal privacy, the first two of which pertain to:

"i. disclosure of employment, medical or
credit histories or personal references of
applicants for employment;

ii. disclosure of items involving the medical
or personal records of a client or patient in
a medical facility..."

Based upon the foregoing, I believe that medical records or records
relating to medical problems or treatment may generally be
withheld.
It is also noted that 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. Further, with
regard to records pertaining to public officers and employees, the
courts have found that, as a general rule, records that are
relevant to the performance of a their 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].

In my opinion, whether an employee has chosen a medical
insurance plan involving family coverage as opposed to individual
coverage, for example, is irrelevant to the performance of that
person's official duties. Consequently, I believe that records,
insofar as they indicate the nature of coverage, could be withheld
as an unwarranted invasion of personal privacy. Similarly, records
of claims based upon medical treatment of an employee or members of
the employee's family could in my opinion be withheld due to
considerations of privacy.

On the other hand, however, I believe that any agreement or
contract between the City and its insurance carrier would be
available, for none of the grounds for denial would apply.
Further, aggregate or statistical data concerning claims would also
be available, so long as it does not include personally
identifiable information. As such, there may be methods of
acquiring information regarding insurance costs incurred by the
City that would be relevant to your concerns, but which does not
identify particular employees or family members.

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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