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August 17, 1993

 

 

Mr. David R. Sheridan
Bond, Schoeneck & King
111 Washington Avenue
Albany, NY 12210-2280

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. Sheridan:

I have received your lengthy letter of August 12 and the
exhibits attached to it. You have requested an advisory opinion
concerning the Freedom of Information Law on behalf of the Glens
Falls Post-Star.

By way of background, in March, a reporter for the Post-Star
requested records or portions of records from the City of Glens
Falls:

"pertaining to those receiving health
insurance provided by the city...[those] to
whom the city now provides health insurance,
under which plan, and at what cost to the city
and the person covered...[and] a list of part-time employees working for the city, and
whether any of them are receiving health
insurance."

The City Attorney denied the request on the ground that disclosure
would constitute "an unwarranted invasion of personal privacy" and
indicated that he "confirmed" that position in a conversation with
me. Thereafter, a modified request was made by the same reporter
for records reflective of:

"the number of people the city covers with
health insurance, broken down by which health
insurance carrier covers them...for 1992 and
year-to-date for 1993,...[h]ow many employees
working 30 hours per week or less were covered
by city health insurance in 1992, and how many
are covered now...what positions these people
hold and how many hours per week they
work...how many of these people were elected
to their positions and how many were
appointed...[and] the cost to the city for
insuring these people in 1992, as well as the
projected cost of 1993...[and] [h]ow many
people who left their positions before they
were eligible to retire were covered by city
health insurance in 1992, and how many are
covered now...what positions they left...how
many were elected and how many were
appointed...[and] the cost of insuring these
people in 1992, as well as the projected cost
for 1993."

The City Attorney denied that request based on the contention that
the effort to "distinguish between elected and non-elected
officials...would provide indirectly the identity of the covered
persons." Although the Post-Star appealed the denial on June 18,
the City had not responded to the appeal as of the date of your
letter to this office.

It is your contention "that compensation that is paid to
public employees by their public employer is a matter of legitimate
public interest" and, therefore, must be disclosed. You added that
the information sought involves "the identity of public officials
who are receiving health insurance at public expense, and the cost
to the public of that health insurance", and that "no attempt is
being made to discover who, other than the public official in
question, is covered by the insurance; that is, there is no attempt
being made to determine whether only the public official is
covered, or whether members of his family are also covered."
Further, having reviewed advisory opinions previously rendered by
this office on this and somewhat related subjects, you sought to
distinguish this situation from others considered in judicial
decisions. Concurrently, you expressed the view that some of those
opinions and decisions are consistent with the arguments that you
offered in favor of disclosure. You also referred to opinions and
decisions that indicate that items reflective of employees'
compensation are public, while others indicating how public
officers and employees spend their own money may justifiably be
withheld. You also contend that none of the examples of
unwarranted invasions of personal privacy appearing in §89(2)(b)
would be applicable or serve as a basis for withholding the
information in question.

In this regard, I offer the following comments.

First, your initial statements concerning the nature of the
information sought may in my opinion be somewhat specious. Again,
you wrote that the Post-Star seeks only the identities of public
officials who receive health insurance at public expense and the
cost of the insurance, and that no attempt is being made to learn
whether only the public official is covered, or whether family
members are covered as well. As a public employee who has a degree
of familiarity with health insurance plans offered to public
employees, it is likely if not a certainty that disclosure of the
identities of public officials covered by employer paid health
insurance plans coupled with information regarding the cost of
those plans would indicate whether the official partakes in a
particular plan and whether he or she has opted for individual or
family coverage. Under a particular plan, the cost of individual
coverage will always be "X", and the cost of family coverage will
always by "Y". Similarly, materials distributed to employees to
enable them to select coverage include information concerning the
cost of individual or family coverage under various plans, i.e., an
"Empire Plan" as opposed to an "HMO". In short, I believe that
disclosure of the identities of those covered by paid health
insurance plans and the cost of coverage together would implicitly
indicate the plan that an employee or official has chosen and
whether the coverage is for that person alone or for his or her
family as well.

Second, notwithstanding the foregoing, 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 §87(2)(a) through (i) of the
Law. In my opinion, the primary issue is whether disclosure would
constitute "an unwarranted invasion of personal privacy" in
accordance with §§87(2)(b) and 89(2) of the Freedom of Information
Law.

In its most recent annual report, the Committee on Open
Government considered that standard and whether it remains viable.
To provide perspective on the matter, I offer the following excerpt
from the report:

"When the Committee's director gives a
presentation and reviews the law, he always
asks whether anyone in the crowd knows what an
unwarranted invasion of personal privacy is.
Nobody raises their hands. He says that's
okay, because nobody knows what it means, and
because everybody has a different line of
demarcation between what is considered to be
offensive as opposed to innocuous. Two
equally reasonable people looking at the same
items of personal information will disagree --
one might say that he or she would not want a
certain item of information to be disclosed,
the other says 'who cares' -- and never the
twain shall meet. If a reporter asks the
director for his home phone number, he
provides it; his number is in the phone book.
However, his wife is in an unrelated
profession, as she uses her maiden name
professionally and a different phone number
for that aspect of her life.

"In terms of the standard itself, it is
virtually the same in every access law. The
federal Freedom of Information Act refers to a
'clearly unwarranted invasion of personal
privacy'; some statutes refer to
"unreasonable" invasions of personal privacy.
The point is that there are no words that can
be used to deal with every conceivable
instance in which privacy is an issue, and it
is doubtful that any 'standard' would be
better than what we have now. Further, from
our perspective, vagueness may be the
equivalent of flexibility, and flexibility may
be more appropriate as society and community
mores change.

"When government officials deal with the
standard, the reality is that somebody at an
agency must often make subjective judgments.
Obviously not every invasion of privacy is
'unwarranted'; some invasions of privacy are
permissible.

"One of the areas in which substantial numbers
of questions arise involves the privacy of
public employees, and there are numerous
decisions that pertain to the privacy of
public employees. In brief, the courts have
held that public 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].

"Therefore, if, for example, a public employee
is found to have engaged in misconduct, a
determination so indicating would be public.
On the other hand, if allegations made against
that person are unsubstantiated and there is
no determination indicating misconduct, the
records can be withheld, for the allegations
that did not result in findings of "guilt"
should not follow that person, perhaps
forever, to his or her detriment. Attendance
records indicating time in and out, leave
accruals and the like are available, but if
there is a notation of the nature of an
illness, that portion of the record could be
withheld as an unwarranted invasion of
personal privacy. What is relevant, according
to the courts, is when and where public
employees come to work when they are scheduled
to do so. It is also noted that §89(7)
specifies that nothing in the Freedom of
Information Law requires the disclosure of the
home address of a present or former public
employee.

"In short, there is no formula that would
apply in every instance that could be used to
determine when disclosure would constitute a
permissible as opposed to an unwarranted
invasion of personal privacy. Moreover, we do
not believe that a formula would be
appropriate, for rational decisions must
frequently be made on the basis of attendant
facts, which may differ from one circumstance
to the next."

One aspect of the commentary appearing in advisory opinions
rendered by this office and which in my view consistently appears
in judicial decisions was not directly considered in your letter.
Specifically, in several contexts, I believe that public rights of
access have been determined in consideration of whether an item of
personal information is relevant to the performance of a public
officer's or employee's duties. In the two decisions upon which
you focused, Matter of Wool (Supreme Court, Nassau County, NYLJ,
November 22, 1977) and Minerva v. Village of Valley Stream (Supreme
Court, Nassau County, May 20, 1981), you reasoned that both
involved disclosure of information concerning compensation, as
opposed to the manner in which public officers and employees choose
to spend their money. In Wool, the issue involved a request for a
record indicating salaries of certain public employees, as well as
notations of deductions made for payment of union dues. The court
held that salary information is clearly available, but that the
information involving the payment of union dues could be withheld,
stating that "[m]embership in the CSEA has no relevance to an
employee's on the job performance or to the functioning of his or
her employer." In Minerva, the request involved both sides of
checks paid by a municipality to its attorney. While the court
held that the front side of the checks must be disclosed, it found
that the backs of checks indicating "how he disposes of his lawful
salary or fees" could be withheld as an unwarranted invasion of
personal privacy. Again, as you suggested, while the matter
involves compensation, I believe that it also involves a finding
that the manner in which the attorney spent his money had no
relevance to the performance of his duties.

If that is the test to be used, whether items of information
identifiable to public officers and employees are relevant to the
performance of their official duties, I believe that the
information sought could be withheld. Whether a public officer or
employee is covered or chooses to be covered by a public employer
paid health insurance plan or whether that person opts for family
or individual coverage, for example, in my opinion has no relevance
to the performance of that person's official duties.

Nevertheless, perhaps that should not be the only "test" for
determining rights of access to records identifiable to public
officers and employees. As suggested earlier, the standard in the
Freedom of Information Law, "unwarranted invasion of personal
privacy", is subject to a variety of considerations and points of
view, and the language of the law in applying that standard is
flexible. You contended, for instance, that none of the examples
of unwarranted invasions of personal privacy appearing in §89(2)(b)
appear to be applicable in the situation at issue. While that may
be so, those examples in my opinion represent few among many
conceivable circumstances in which disclosure would constitute an
unwarranted invasion of personal privacy. Moreover, the
legislature apparently did not intend that the list of unwarranted
invasions of personal privacy be exhaustive, for the introductory
clause in §89(2)(b) states that an unwarranted invasion of personal
privacy "includes, but shall not be limited to" the five examples
that follow. As such, I do not view those examples to be
determinative of all issues that arise relating to the application
of the privacy standard.

A countervailing argument, vis à vis the test described above
and my view of extant case law regarding the privacy of public
employees, arises in the language of a decision rendered by the
Court of Appeals that you cited and upon which I frequently rely in
rendering advisory opinions. In Capital Newspapers v. Burns [109
AD 2d 292 (1985), aff'd 67 NY 2d 562 (1986)], the issue involved
records reflective of the days and dates of sick leave claimed by
a particular police officer. The Appellate Division, as I
interpret its decision, held that those records were clearly
relevant to the performance of the officer's duties, for the Court
found that:

"One of the most basic obligations of any
employee is to appear for work when scheduled
to do so. Concurrent with this is the rights
of an employee to properly use sick leave
available to him or her. In the instant case,
intervenor had an obligation to report for
work when scheduled along with a right to use
sick leave in accordance with his collective
bargaining agreement. The taxpayers have an
interest in such use of sick leave for
economic as well as safety reasons. Thus it
can hardly be said that disclosure of the
dates in February 1983 when intervenor made
use of sick leave would constitute an
unwarranted invasion of privacy. Further, the
motives of petitioners or the means by which
they will report the information is not
determinative since all records of government
agencies are presumptively available for
inspection without regard to the status, need,
good faith or purpose of the applicant
requesting access..." [109 AD 2d 92, 94-95
(1985)].

Perhaps more importantly, in a statement concerning the intent and
utility of the Freedom of Information Law, the Court of Appeals
affirmed and found that:

"The Freedom of Information Law expresses this
State's strong commitment to open government
and public accountability and imposes a broad
standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New
York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance
of the public's vested and inherent 'right to
know', 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"
(Capital Newspapers v. Burns, supra, 565-566).

Based on the foregoing, it might appropriately be contended
that the need to enable the public to make informed choices and
provide a mechanism for exposing waste or abuse must be balanced
against the possible infringement upon the privacy of a public
officer or employee. The magnitude of an invasion of privacy is
conjectural and must in many instances be determined subjectively.
In this instance, if a court found the invasion of one's privacy to
be substantial, it might be determined that the interest in
protecting privacy outweighs the interest in identifying employees
receiving coverage. It is possible, too, that a court could find
that the identities of employees receiving coverage should be
disclosed, but that the cost of coverage, by named employee,
thereby indicating the nature of coverage (i.e., individual as
opposed to family coverage) may be withheld, and that the cost of
coverage should be disclosed generically. On the other hand, in
conjunction with the direction provided by the Court of Appeals in
the passage quoted earlier, it might be determined that the
information sought should be disclosed in its entirety in view of
the public's significant interest in knowing how public monies are
being expended.

In sum, there may be a variety of considerations that may be
used by a court in determining the extent to which the information
sought is accessible or deniable. While advisory opinions are
often rendered in an effort to resolve issues in order to obviate
the need for litigation, it is questionable in my view whether an
opinion specifically advising that the information sought should be
disclosed in whole or in part will resolve the matter.

Nevertheless, in consideration of the factors that have been
discussed, it is my view that a disclosure indicating that a public
officer or employee is covered by a health insurance plan at public
expense would not represent or reveal an intimate detail of one's
life. Arguably, the record reflective of the dates of sick leave
claimed by a public employee found by the courts to be available
represents a more intimate or personal invasion of privacy.
However, if a disclosure of the cost of coverage for a particular
employee indicates which plan that person has chosen or whether his
or her plan involves individual or dependent coverage, such a
disclosure in my view may potentially result in the revelation of
a number of details of a person's life and an unwarranted invasion
of personal privacy. For instance, an indication of cost might
reveal whether the coverage involves medical treatment routinely
provided by a clinic, as opposed to a primary care physician; it
also may indicate the nature of coverage, i.e., whether coverage is
basic or includes catastrophic care. Again, the cost may also
reveal whether coverage is for an employee alone or for that
person's family or dependents. Preferable in my opinion would be
a disclosure of costs by category, rather than by naming
individuals, in terms of plans that are offered or available to
officers or employees.

It is emphasized, however, that my opinion is just that, an
opinion. As suggested earlier, judgments involving privacy often
of necessity must be subjective, and I believe that only the courts
can effectively make such judgments.

Further, should litigation be initiated following a denial of
a request to records, §89(4)(b) of the Freedom of Information Law
states that the agency must prove that the records withheld fall
within the scope of the grounds for denial appearing in §87(2). In
this regard, I point out that the courts have consistently
interpreted the Freedom of Information Law in a manner that fosters
maximum access. As stated by the Court of Appeals more than decade
ago:

"To be sure, the balance is presumptively
struck in favor of disclosure, but in eight
specific, narrowly constructed instances where
the governmental agency convincingly
demonstrates its need, disclosure will not be
ordered (Public Officers Law, section 87, subd
2). Thus, the agency does not have carte
blanche to withhold any information it
pleases. Rather, it is required to articulate
particularized and specific justification and,
if necessary, submit the requested materials
to the courts for in camera inspection, to
exempt its records from disclosure (see Church
of Scientology of N.Y. v. State of New York,
46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of
one of these statutory exemptions may
disclosure be withheld" [Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)]."

Lastly, your letter states that the City failed to respond to
the Post-Star's appeal as required by §89(4)(a). 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. If you would like
to discuss the matter, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Francis X. O'Keefe, Mayor
Ronald L. Newell, City Attorney