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March 2, 1994

 

 

William C. Klein, Chairman
Funeral Directing Advisory Board
215 Dartmouth Street
Rochester, NY 14607

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. Klein:

I have received your letter of January 22. Please accept my
apologies for the delay in response.

In your capacity as Chairman of the Funeral Directing Advisory
Board, a statutory body that operates within the State Department
of Health, you have questioned the propriety of a refusal by the
Bureau of Funeral Directing to disclose addresses, telephone
numbers, "home towns" or the dates of appointment or reappointment
of members.

You have asked whether those kinds of items must be disclosed
under the Freedom of Information Law. 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 §87(2)(a) through (i) of the Law.

Second, from my perspective, §87(2)(b) is relevant to the
matter. That provision enables an agency to withhold records when
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 my view, neither the home addresses nor the home telephone
numbers of a public officer or employee would be relevant to the
performance of that person's duties. Consequently, I believe that
those items could properly be withheld. Moreover, §89(7) states in
part that "[N]othing in this article [the Freedom of Information
Law] shall require the disclosure of the home address of an officer
or employee..."

If, however, the Department of Health maintains the business
addresses of Board members, it is my view that those items must be
disclosed, for there is nothing intimate or personal about them.

Lastly, in my opinion, records indicating Board members' terms
of office and their dates of appointment or reappointment would be
available, for those facts in my opinion relate to the performance
of their duties and must be disclosed. That information, as well
as the municipalities of residence of Board members, has been
disclosed through the Legislative Manual, a book published
periodically by the Department of State. Enclosed is an excerpt
pertaining to the Funeral Directing Advisory Board from the 1988-89
edition. To the best of my knowledge, that is the latest edition
of the Legislative Manual.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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Enc.
cc: Bureau of Funeral Directing