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May 4, 1993

 

Mr. Arthur J. Gleason
Trustee
Cohoes City School District
Administrative Offices
21 Page Avenue
Cohoes, NY 12047

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. Gleason:

I have received your letter of April 22, as well as the
correspondence attached to it.

In your capacity as a member of the Cohoes City School
District Board of Education, you wrote that the Board asked the
District Clerk to write to other school districts to request copies
of their current superintendents' contracts. You added that the
Cohoes City School District is involved in a search for a new
superintendent, and that the Board believes that it would be
beneficial to review contracts applicable in districts in the
vicinity of Cohoes. Although, eleven of the twelve districts in
receipt of the request readily disclosed the contracts, "no written
response of any kind" was provided by the Troy City School
District. Moreover, you indicated that the Troy Superintendent
recently telephone your current Superintendent and informed him
that he would not provide the District with a copy of his contract.

You have requested an advisory opinion on the matter. 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 section 87(2)(a) through (i) of the Law.

Second, contracts, bills, vouchers, receipts and similar
records reflective of expenses incurred by an agency or payments
made to an agency's staff must generally be disclosed, for none of
the grounds for denial could appropriately be asserted to withhold
those kinds of records. Likewise, in my opinion, a contract
between an administrator, such as a superintendent, and a school
district or board of education clearly must be disclosed under the
Freedom of Information Law. It is noted that there is nothing in
the statute 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 under the circumstances 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, 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 a discussion of the intent of the Freedom of Information
Law by the state's highest court in a case cited earlier, 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).

In sum, I believe that a superintendent's contract, like a
collective bargaining agreement between a public employer and a
public employee union, must be disclosed, for it is clearly
relevant to the duties, terms and conditions regarding the
employment of a public employee.

Lastly, since you indicated that no official of the Troy City
School District responded in writing to the request, I point out
that the Freedom of Information Law provides direction concerning
the time and manner in which agencies must respond to requests.
Specifically, §89(3) of the Freedom of Information Law states in
part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. 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, 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, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

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: Mario Scalzi, Superintendent
Board of Education, Troy City School District
Records Access Officer, Troy City School District
Sharon Billings, Cohoes District Clerk