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July 19, 1993

 

Owen B. Walsh, Chief
Deputy County Attorney
County of Nassau
Nassau County Executive Building
1 West Street
Mineola, NY 11501-4820

Dear Mr. Walsh:

I appreciate receipt of your determination of an appeal made
under the Freedom of Information Law by Glenn Urbanas.

The determination focuses on rights of access to the resumés
or applications of two individuals employed by Nassau County.
Although some of the material requested was made available, you
affirmed the initial denial with respect to the remainder. In this
regard, I offer the following comments concerning your
determination.

First, as you are aware, 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, you alluded to §87(2)(a) in your determination. That
provision pertains to records that "are specifically exempted from
disclosure by state or federal statute." While there may be
portions of the records in question that might justifiably be
withheld, I do not believe that the records fall within the scope
of any statute that specifically exempts them from disclosure or,
therefore, that §87(2)(a) would serve as a basis for denial.

In my opinion, the only relevant basis for denial would have
been §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 view, the provisions cited above might serve to enable an
agency to withhold some aspects of a resumé or an application.
Nevertheless, it is likely that other aspects of those kinds of
records 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 resumé 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 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 sought contain information pertaining to the
requirements that must have been met to hold the 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)]. Consequently, while
reference to one's private sector employment could likely be
withheld, reference to prior public employment would in my view be
accessible. 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.

Lastly, reliance upon some of the cases cited in your
determination is in my opinion misplaced. For instance, Gannett v.
James [86 AD 2d 774 (1982)] dealt with police officers' personnel
records, and that decision was based largely upon the provisions of
§50-a of the Civil Rights Law; Bahlman v. Brier [119 Misc. 2d 110
(1983)] was effectively reversed by Capital Newspaper v. Burns [109
AD 2d 292, aff'd 67 NY 2d 562 (1986)]. Further, Short v. Board of
Managers [57 NY 2d 399 (1982)] involved a situation in which a
class of records was, in its entirety, exempted from disclosure by
statute. In my view, none of those decisions would have been
relevant or applicable to the records that were the subject of your
determination.

For the foregoing reasons, your determination, insofar as it
upheld a denial of access to records, may in my opinion have been
overbroad.

If you would like to discuss the matter, please feel free to
contact me. I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Glenn Urbanas