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February 28, 1994

 

 

Ms. Yvonne Chavez
4400 Middle Cheshire Road
Canandaigua, NY 14424

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. Chavez:

I have received your letter of January 24 and various related
correspondence concerning your requests for records directed to the
City of Canandaigua.

The initial issues that you raised pertain to the
implementation of the Freedom of Information Law by the City. In
this regard, §89(1)(b)(iii) of the Freedom of Information Law
requires the Committee on Open Government to promulgate regulations
concerning the procedural implementation of the Law (see 21 NYCRR
Part 1401). In turn, §87(1) requires the governing body of a
public corporation, i.e., a city council, to adopt rules and
regulations consistent with the Law and the Committee's
regulations.

Relevant to your correspondence is §1401.2 of the regulations,
which provides in relevant part that:

"(a) The governing body of a public
corporation and the head of an executive
agency or governing body of other agencies
shall be responsible for insuring compliance
with the regulations herein, and shall
designate one or more persons as records
access officer by name or by specific job
title and business address, who shall have the
duty of coordinating agency response to public
requests for access to records. The
designation of one or more records access
officers shall not be construed to prohibit
officials who have in the past been authorized
to make records or information available to
the public from continuing to do so.

(b) The records access officer is responsible
for assuring that agency personnel...

(3) Upon locating the records, take one of
the following actions:

(i) make records promptly available for
inspection; or
(ii) deny access to the records in whole or in
part and explain in writing the reasons
therefor..."

In view of the foregoing, the records access officer has the "duty
of coordinating agency response" to requests and assuring that
agency personnel act appropriately in response to requests. As
such, in my opinion, if a request is not made to the designated
records access officer, the person in receipt of the request should
either respond directly or forward the request immediately to the
records access officer in order that the request can be answered in
accordance with law.

With respect to appeals, §1401.7 of the regulations provides
in part that:

"(a) The governing body of a public
corporation or the head, chief executive or
governing body of other agencies shall hear
appeals or shall designate a person or hear
appeals regarding denial of access to records
under the Freedom of Information Law.

(b) Denial of access shall be in writing
stating the reason therefor and advising the
person denied access of his or her right to
appeal to the person or body established to
hear appeals, and that person or body shall be
identified by name, title, business address
and business telephone number. The records
access officer shall not be the appeals
officer."

Further, for future reference, the Freedom of Information Law
provides direction concerning the time and manner in which agencies
must respond to requests and appeals. 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)].

Other issues involve a denial of access to certain memoranda
referenced in a letter to you by the City Manager on February 1.
In his denial, the City Manager referred to §87(2)(g) and indicated
that certain aspects of that provision had been repealed as of
January 1 of this year. He also referred to one of the memoranda
as a "personnel record consisting of an appraisal of performance"
that could be withheld under §§87(2)(g) and 89(2)(b) as "an
unwarranted invasion of personal privacy."

I point out initially that legislation enacted in 1993
preserves the language of §87(2)(g), which remains intact.

Moreover, although §87(2)(g) may serve as a basis for a denial
of access, due to its structure, it often requires disclosure.
That provision 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.

In a case involving intra-agency materials, the State's
highest court, the Court of Appeals specified that the contents of
those materials determine the extent to which they may be
available or withheld, for it was held that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" [Xerox
Corporation v. Town of Webster, 65 NY 2d 131,
133 (1985)].

Therefore, even though statistical or factual information may be
intertwined with opinions, for example, the statistical or factual
portions, if any, would be available, unless a different ground for
denial could properly be asserted [see also Ingram v. Axelod, 90 AD
2d 568 (1982)]. While a memorandum might properly be characterized
"intra-agency" material that falls within the scope of §87(2)(g),
that characterization alone is not determinative of rights of
access.

Similarly, the characterization of a document as a personnel
record does not necessarily mean that the document may be withheld.
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, October 30, 1980). On the
contrary, as in the case of §87(2)(g), 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.

Section 87(2)(b) of the law authorizes an agency to withhold
records or portions thereof to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy."
Additionally, §89(2)(b) provides a series of examples of
unwarranted invasions of personal privacy. In my view, although
various aspects of records concerning the public employees or their
backgrounds may be withheld, other portions of those documents 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].

Although the contents of evaluations may differ, I believe
that a typical evaluation contains three components.

One component involves a description of the duties to be
performed by a person holding a particular position, or perhaps a
series of criteria reflective of the duties or goals to be achieved
by a person holding that position. Insofar as evaluations contain
information analogous to that described, I believe that those
portions would be available. In terms of privacy, a duties
description or statement of goals would clearly be relevant to the
performance of the official duties of the incumbent of the
position. Further, that kind of information generally relates to
the position and would pertain to any person who holds that
position. As such, I believe that disclosure would result in a
permissible rather than an unwarranted invasion of personal
privacy. In terms of §87(2)(g), a duties description or statement
of goals would be reflective of the policy of an agency regarding
the performance standards inherent in a position and, therefore, in
my view, would be available under §87(2)(g)(iii). It might also be
considered factual information available under §87(2)(g)(i).

The second component involves a reviewer's subjective analysis
or opinion of how well or poorly the standards or duties have been
carried out or the goals have been achieved. In my opinion, that
aspect of an evaluation could be withheld, both as an unwarranted
invasion of personal privacy and under §87(2)(g), on the ground
that it constitutes an opinion concerning performance.

A third possible component is often a final rating, i.e.,
"good", "excellent", "average", etc. Any such final rating would
in my opinion be available, assuming that any appeals have been
exhausted, for it would constitute a final agency determination
available under §87(2)(g)(iii), particularly if monetary award is
based upon a rating. Moreover, a final rating concerning a public
employee's performance is relevant to that person's official duties
and therefore would not in my view result in an unwarranted
invasion of personal privacy if disclosed.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: William R. Bridgeo, City Manager
Clerk/Treasurer