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June 1, 1993

 

 

Ms. Judith Laurence
Field Representative
NYSUT/Elmsford Regional Office
570 Taxter Road
Elmsford, N.Y. 10523

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. Laurence:

I have received your letter of May 11 in which you raised a
question concerning the Freedom of Information Law.

According to your letter, a request was recently made to the
Pleasantville Union Free School District for a copy of the
"Application for Employment of an Uncertified Teacher" that was
filed with the State Education Department on behalf of a particular
teacher. Although you indicated in the request a recognition that
certain personal information in the application might properly be
withheld, the District denied access to the entire application "on
the basis that it was a personnel matter." You questioned the
propriety of the District's denial of the application, and you
enclosed a blank copy of the application for review.

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. In
addition, it is emphasized that the introductory language of §87(2)
refers to the authority to withhold "records or portions thereof"
in accordance with the grounds for denial that follow. The phrase
quoted in the preceding sentence indicates that a single record may
contain both accessible and deniable information, and that agency
officials are obliged to review records sought in their entirety to
determine which portions, if any, may justifiably be deleted.
Following any such deletions, the remainder of the records must be
disclosed.

Second, 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.

Of primary relevance in this instance is §87(2)(b) of the
Freedom of Information Law, 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 states that an unwarranted invasion of
personal privacy includes:

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

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].

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,
records containing those kinds of information 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 different 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 records contain
information pertaining to the requirements that must have been met
to hold a position, they should be disclosed, for I believe that
disclosure of those aspects of documents 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, information
included in a document that is irrelevant to criteria required for
holding the position, such as grade point average, home address,
social security number and the like, could in my opinion be deleted
prior to disclosure of the remainder of a record to protect against
an unwarranted invasion of personal privacy.

Similarly, in the case of the application in question, under
the heading of "Moral Character Determination," while some response
would in my view be accessible, other could be withheld. Insofar
as the responses deal with one's private sector employment, I
believe that disclosure would constitute an unwarranted invasion of
personal privacy. Further, as you are aware, if charges in a
proceeding brought under §3020-a of the Education are dismissed,
that statute states that the charges are to be expunged from the
teacher's record. In that circumstance, reference to a response to
that effect could in my view be deleted. If however, charges were
sustained, those records and a determination would be available.
Therefore, reference to §3020-a proceedings where the charges were
sustained would in my view be public.

In sum, while some aspects of the application could in my view
be withheld, I believe that others would be available and that a
denial of the application in its entirely was inappropriate and
inconsistent with the Freedom of Information Law.
I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Records Access Officer