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April 30, 1993

 

Mr. Richard Mackay
Rd #1 Box 541
Mt. Upton, N.Y. 13809

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. Mackay:

I have received your letter of April 16 and the materials
attached to it.

Your inquiry pertains to the propriety of a denial of a
request for the resume of are individual hired by the Gilbertsville
Mt. Upton School District as clerk of the works. Based on the
correspondence attached to your letter, the names of former
employers of the person hired were withheld on the ground that
disclosure would result in an "unwarranted invasion of personal
privacy". However, it also indicates that information reflective
of the "level of education, and years of job experience relevant to
the position of clerk of the works" was disclosed. Further, you
referred to an earlier advisory opinion on the same subject that
apparently resulted in disclosure of a resume in its entirety.

In this regard, I offer the following commentary, much of
which will reiterate points offered in the earlier opinion.

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, in my opinion, the only relevant basis for denial is
§87(2)(b), which authorizes an agency to withhold records or
portions thereof when disclosure would constitute "an unwarranted
invasion of personal privacy." Additionally, §89(2)(b) provides a
series of examples of unwarranted invasions of personal privacy,
the first of which was cited as the basis for denial. That
provision states that an unwarranted invasion of personal privacy
includes:

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

In my opinion, the provisions cited above might serve to enable an
agency to withhold some aspects of a resume. Nevertheless, it is
likely that other aspects of a resume must be disclosed.

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].

With respect to access to a resume or application of a public
officer or employee, if, for example, an individual must have
certain types of experience, educational accomplishments, licenses
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. In a related context, when a civil
service examination is given, those who pass are identified in
"eligible lists" which have long been available to the public. By
reviewing an eligible list, the public can determine whether
persons employed by government have passed the appropriate
examinations and met whatever qualifications that might serve as
conditions precedent to employment. In my opinion, to the extent
that a resume contains information pertaining to the requirements
that must have been met to hold the position, it should be
disclosed, for I believe that disclosure of those aspects of a
resume 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.

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)]. However, reference to
former private employers could in my opinion be withheld. Further,
information included in a document that is irrelevant to criteria
required for holding the position, such as grade point average,
class rank, home address, social security number and the like,
could in my opinion be deleted prior to disclosure of the remainder
of the record to protect against an unwarranted invasion of
personal privacy.

In short, if the District disclosed portions of the resume or
equivalent information derived from a resume consistent with the
foregoing, it appears that the response to your request would have
been proper. Again, while I believe that reference to one's
previous public employment must be disclosed, reference to one's
private employers could in my opinion properly be withheld.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Fred G. Loveland, Superintendent