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April 5, 1993

 

Ms. Denise Shukoff
26 Pavilion Street
Rochester, NY 14620

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,
unless otherwise indicated.

Dear Ms. Shukoff:

As you are aware, I have received your letter of March 16,
which reached this office on March 24.

You have sought an advisory opinion concerning a request for
records directed to the Rochester City School District in January.
In response to the request, you were informed that some of the
records sought would be made available, but that two of the
categories of the records would be withheld. Although you appealed
the denial on February 2, as of the date of our conversation on
April 2, you had received no response to the appeal.

The records that were denied include the "final rating for
each employee, the criteria used, and the name of the supervisor
who completed the evaluation", and "[f]or the employees whose PART
proposals were accepted for the 91-92 year: 1. The proposals
accepted 2. The final rating, criteria used, and the name of the
person prepared the final rating." You indicated during our
conversation that "PART" is the acronym for "Performance Appraisal
Redesign for Teachers", a new program under which new or different
kinds of appraisals of teachers are prepared. It is my
understanding, based upon our discussion, that teachers can choose
among appraisal plans or create unique individual plans, and that
those plans may include self-appraisals and peer appraisals for
example. The "criteria used" may include duties descriptions with
a variety of performance standards, including individual standards
used to evaluate or judge performance.

The letter denying access to records described above states
that "this information does not fall within the scope of the
Freedom of Information Act and as such, is not considered public
records", that the information "is personal and confidential", and
that "any disclosure without that individual's consent would
constitute an unwarranted invasion of personal privacy."

In this regard, I offer the following comments.

First, both your request and the response by the District
cited both the federal Freedom of Information Act and the "New York
State Public Disclosure Law". For the purpose of clarification, I
point out that the federal Freedom of Information Act applies only
to records maintained by federal agencies. As such, it is
inapplicable. The general disclosure statute applicable to state
and local governmental entities in New York is the New York State
Freedom of Information Law.

Second, since the response states that some of the information
sought does not fall within the scope of the Freedom of Information
Law and "is not considered public records", it is noted that the
Freedom of Information Law pertains to all agency records. Section
86(4) of that statute defines the term "record" to mean:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based on the foregoing, the documentation that was denied in my
view would clearly consist of "records" that are subject to rights
conferred by the Freedom of Information Law.

Moreover, there is nothing in the Freedom of Information Law
that deals specifically with personnel records or personnel files.
The nature and content of so-called personnel files may differ from
one agency to another and from one employee to another. In any
case, neither the characterization of documents as personnel
records nor their placement in personnel files would necessarily
render those documents confidential or deniable under the Freedom
of Information Law (see Steinmetz v. Board of Education, East
Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980). On the
contrary, the contents of those documents are the factors used in
determining the extent to which they are available or deniable
under the Freedom of Information Law.

Third, 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. While two of
the grounds for denial may be relevant to an analysis of rights of
access to the records that were withheld, it is likely in my
opinion that those records should be disclosed in great measure or
perhaps in their entirety.

Section 87(2)(g) enables an agency 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. From my perspective, all of the records that
were withheld could be characterized as "intra-agency materials".
However, an approved proposal and the criteria used in evaluating
performance would in my opinion be reflective of a final agency
determination or an indication of the District's policy that is
applied to a teacher or teachers in evaluating performance. If
that is so, those aspects of the records would be available under
§87(2)(g)(iii).

Also significant is §87(2)(b), which permits an agency to
withhold records when 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. It is clear based upon
judicial decisions 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 in a variety of contexts that 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)]. When a record is
accessible because disclosure would result in a permissible
invasion of privacy, no consent would be needed or required from
the subject of the record as a condition precedent to disclosure.
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].

While standards, goals, objectives and similar criteria might
apply to a particular employee, those records would clearly be
relevant to the performance of that person's official duties.
Consequently, I believe that disclosure would result in a
permissible rather than an unwarranted invasion of personal
privacy. However, insofar as the documents include a supervisor's
subjective comments or analysis of how well or poorly an individual
has carried out goals or met the criteria, those portions of the
records could in my view be withheld. Similarly, self-appraisals
or peer appraisals would apparently consist of opinions that could
also be withheld. In short, portions of those kinds of records
reflective of opinions and could be withheld under §87(2)(g) and
perhaps as an unwarranted invasion of personal privacy.

A 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 a 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, as well as those of the supervisor
who issues the rating. Therefore, I believe that the name of the
employee, the final rating, and the name of the supervisor who made
the rating would be available, for disclosure would not result in
an unwarranted invasion of personal privacy of either the employee
or the supervisor.

Lastly, since your appeal has not been answered, I point out
that §89(4)(a) of the Freedom of Information Law requires that a
determination must be rendered within ten business days of its
receipt. That provision states in relevant part that:

"any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive or
governing body of the entity, or the person
thereof designated by such head, chief
executive, or governing body, who shall within
ten business days of the receipt of such
appeal fully explain in writing to the person
requesting the record the reasons for further
denial, or provide access to the record
sought. In addition, each agency shall
immediately forward to the committee on open
government a copy of such appeal and the
ensuing determination thereon."

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to District officials.

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

RJF:jm

cc: Manuel Rivera, Superintendent
Tynise Y. Edwards, Assistant Counsel