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May 3, 1993

 

 

Mr. Ken Hoch
26 Winthrop Drive
Cortlandt Manor, N.Y. 10566

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. Hoch:

I have received your letter of April 14 in which you sought
assistance in acquiring information from the Peekskill School
District.

According to your letter, at the District's recent budget
hearing, in consideration of your assumption that "it would be
normal to review staff and occasionally terminate unsatisfactory
employees", you asked the Board "[h]ow many teachers have you fired
in recent years." You did not inquire as to their names or why
they were dismissed. You wrote that the Superintendent refused to
answer and indicated that "he was prohibited by law from revealing
such data."

In this regard, I offer the following comments.

First, although questions may be raised by those who attend
public hearings, I know of no requirement that school district
officials must answer those questions.

Second, it is suggested that you seek the data under the
Freedom of Information Law. I point out that the Freedom of
Information Law pertains to existing records. Section 89(3) of the
Law states in part that an agency need not create a record in
response to a request. Therefore, if the District has not
developed figures or statistics concerning the number of teachers
that have been dismissed, it would not be required to create new
records on your behalf. Rather than seeking the data by raising a
question, it is suggested that you request existing records
pertaining to the firing or dismissal of teachers during a
particular period. In a related vein, §89(3) of the Freedom of
Information Law requires that an applicant must "reasonably
describe" the records sought. Therefore, a request should contain
sufficient detail to enable agency officials to locate and identify
the records in which you are interested.

Third, although I am not an expert with respect to the
Education Law, I believe that teachers may be dismissed or "fired"
pursuant to a limited number of mechanisms. Probationary teachers,
those without tenure, may be dismissed during or at the end of a
period of probation. Tenured teachers may be dismissed or in
accordance with disciplinary proceedings commenced under §3020-a of
the Education Law. Further, in some instances, rather than
engaging in disciplinary proceedings or completing those
proceedings, teachers and school districts may engage in settlement
agreements the results of which might be dismissals of teachers.
In addition, due to financial or budget constraints, teachers may
be "excessed" or laid off. In my opinion, in each of those
instances, records reflective of dismissals of teachers, including
their names, must be disclosed under the Freedom of Information
Law.

Fourth, the Freedom of Information Law, in brief, 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 section 87(2)(a) through (i) of the Law.

It is noted that there is nothing in the Freedom of
Information Law that deals specifically with personnel records or
personnel files. Further, 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
serve as the relevant factors in determining the extent to which
they are available or deniable under the Freedom of Information
Law.

The provision in the Freedom of Information Law of most
significance concerning personnel records is, in my view,
§87(2)(b). That provision permits an agency to withhold records to
the extent that disclosure would constitute "an unwarranted
invasion of personal privacy".

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, supra; 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 one of the decisions cited above, Gannett, the State's
highest court found that the names of employees who had been
terminated due to budgetary action were accessible to the public.

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. Insofar as a request involves final agency
determinations, i.e., determinations to terminate teachers, I
believe that those determinations must be disclosed, again, unless
a different ground for denial could be asserted.

In terms of the judicial interpretation of the Freedom of
Information Law, I point out that in situations in which
allegations or charges have resulted in the issuance of a written
reprimand, disciplinary action, or findings that public employees
have engaged in misconduct, records reflective of those kinds of
determinations have been found to be available, including the names
of those who are the subjects of disciplinary action [see Powhida
v. City of Albany, 147 AD 2d 236 (1989); also Farrell, Geneva
Printing, Scaccia and Sinicropi, supra].

Similarly, in Geneva Printing, supra, a public employee
charged with misconduct and in the process of an arbitration
hearing engaged in a settlement agreement with a municipality. One
aspect of the settlement was an agreement to the effect that its
terms would remain confidential. Notwithstanding the agreement of
confidentiality, which apparently was based on an assertion that
"the public interest is benefited by maintaining harmonious
relationships between government and its employees", the court
found that no ground for denial could justifiably be cited to
withhold the agreement. On the contrary, it was determined that:

"the citizen's right to know that public
servants are held accountable when they abuse
the public trust outweighs any advantage that
would accrue to municipalities were they able
to negotiate disciplinary matters with its
employee with the power to suppress the terms
of any settlement".

In so holding, the court cited a decision rendered by the Court of
Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d
527), the Court of Appeals in concluding that
a provision in a collective bargaining
agreement which bargained away the board of
education' s right to inspect personnel files
was unenforceable as contrary to statutes and
public policy stated: 'Boards of education are
but representatives of the public interest and
the public interest must, certainly at times,
bind these representatives and limit or
restrict their power to, in turn, bind the
public which they represent. (at p. 531).

A similar restriction on the power of the
representatives for the Village of Lyons to
compromise the public right to inspect public
records operates in this instance.

The agreement to conceal the terms of this
settlement is contrary to the FOIL unless
there is a specific exemption from disclosure.
Without one, the agreement is invalid insofar
as restricting the right of the public to
access."

Another more recent decision also required the disclosure of a
settlement agreement between a teacher and a school district
following the initiation of disciplinary proceedings under §3020-a
of the Education Law (Buffalo Evening News v. Board of Education of
the Hamburg School District and Marilyn Well, Supreme Court, Erie
County, June 12, 1987). Further, that decision relied heavily upon
an opinion rendered by this office.

It has been held in other circumstances that a promise or
assertion of confidentiality cannot be upheld, unless a statute
specifically confers confidentiality. In Gannett News Service v.
Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780
(1979)], a state agency guaranteed confidentiality to school
districts participating in a statistical survey concerning drug
abuse. The court determined that the promise of confidentiality
could not be sustained, and that the records were available, for
none of the grounds for denial appearing in the Freedom of
Information Law could justifiably be asserted. In a decision
rendered by the Court of Appeals, it was held that a state
agency's:

"long-standing promise of confidentiality to
the intervenors is irrelevant to whether the
requested documents fit within the
Legislature's definition of 'record' under
FOIL. The definition does not exclude or make
any reference to information labeled as
'confidential' by the agency; confidentiality
is relevant only when determining whether the
record or a portion of it is exempt..."
[Washington Post v. Insurance Department, 61
NY 2d 557, 565 (1984)].

It is my view that the terms of a settlement would result in
a permissible rather than an unwarranted invasion of personal
privacy. That record is, in my opinion, relevant to the
performance of the official duties of the Board of Education and
the tenured employees.

In sum, if records do not fall within the scope of the grounds
for denial appearing in the Freedom of Information Law, I believe
that they must be made available, notwithstanding a promise of or
agreement with respect to confidentiality.

Further, in its discussion of the intent of the Freedom of
Information Law, the Court of Appeals in Capital Newspapers, supra,
found that the statute:

"affords all citizens the means to obtain
information concerning the day-to-day
functioning of state and local government thus
providing the electorate with sufficient
information to 'make intelligent, informed
choices with respect to both the direction and
scope of governmental activities' and with an
effective tool for exposing waste, negligence
and abuse on the part of government officers"
(67 NY 2d at 566).

Based upon the foregoing, it is clear in my opinion that
records indicating dismissals of teachers, including their names,
must be disclosed under the Freedom of Information Law. Moreover,
I would conjecture that Board actions regarding dismissals of
teachers would appear in minutes of meetings available to the
public.

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:pb

cc: Superintendent of Schools