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March 15, 1994

 

 

Mr. William G. Farrar
6 Birchwood Ct., Apt. 4N
Mineola, NY 11501

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. Farrar:

I have received your letter of January 28 and accompanying
materials. Please accept my apologies for the delay in response.

You have sought an advisory opinion concerning a denial by the
Village of Mineola of your request for a settlement agreement
between the Village and a former Village employee. The Village
Clerk rejected the request stating that:

"...disclosure of said document would result
in unwarranted invasion of personal privacy,
and also since such document is part of the
employment history of the subject former
employee and may deal with the employment,
demotion, discipline, suspension, dismissal or
removal of said person."

However, having been informed by the Village Attorney that "payment
of taxpayers dollars will be made pursuant to the agreement", you
contended that:

"As an interested taxpayer, [you] want to know
how much taxpayer money will be used to, in
effect, keep the Village out of court.
Without access to the settlement agreement,
the elected Village officials who approve the
agreement cannot be held directly accountable
for their action as taxpayers are prevented
from knowing the full extent of the actions of
their elected officials in this matter."

You also indicated that it is your understanding that "the
settlement contains a 'gag order' preventing the Village from
disclosing the terms of the agreement.

In this regard, I offer the following comments.

First, in his denial of your request, the Village Clerk
appears to have relied in part on the language of one of the
grounds for entry into executive sessions, §105(1)(f), that appears
in the Open Meetings Law. In brief, that statute pertains to
meetings of public bodies; it is separate and distinct from the
Freedom of Information Law, which pertains to access to agency
records. Further, while an issue might properly be discussed
during an executive session held pursuant to §105(1) of the Open
Meetings Law, it does not necessarily or legally follow that a
record relating to or prepared as a result of an executive session
may be withheld under the Freedom of Information Law.

Second, based upon the following analysis of the Freedom of
Information Law and its judicial interpretation, I believe that the
settlement agreement must be disclosed, notwithstanding the "gag
order."

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.

Perhaps the most relevant ground for denial is §87(2) (b),
which states that an agency may withhold records or portions
thereof when disclosure would result in "an unwarranted invasion of
personal privacy". In addition, §89(2)(b) lists five examples of
unwarranted invasions of personal privacy.

Although subjective judgments must often of necessity be made
when questions concerning privacy arise, the courts have provided
substantial direction regarding the privacy of public employees.
First, it is clear that public employees enjoy a lesser degree of
privacy than others, for it has been found in various contexts that
public employees are required to be more accountable than others.
Second, with regard to records pertaining to public employees, the
courts have found that, as a general rule, records that are
relevant to the performance of a public employee' s 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); 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 Geneva Printing, supra, a public employee charged with
misconduct and in the process of an arbitration hearing engaged in
a settlement agreement with a municipality. One aspect of the
settlement apparently analogous to the "gag order" to which you
referred was an agreement to the effect that its terms would remain
confidential. Notwithstanding the agreement of confidentiality,
which apparently was based on an assertion that "the public
interest is benefited by maintaining harmonious relationships
between government and its employees", the court found that no
ground for denial could justifiably be cited to withhold the
agreement. On the contrary, it was determined that:

"the citizen's right to know that public
servants are held accountable when they abuse
the public trust outweighs any advantage that
would accrue to municipalities were they able
to negotiate disciplinary matters with its
employee with the power to suppress the terms
of any settlement".

In so holding, the court cited a decision rendered by the Court of
Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d
527), the Court of Appeals in concluding that
a provision in a collective bargaining
agreement which bargained away the board of
education' s right to inspect personnel files
was unenforceable as contrary to statutes and
public policy stated: 'Boards of education are
but representatives of the public interest and
the public interest must, certainly at times,
bind these representatives and limit or
restrict their power to, in turn, bind the
public which they represent. (at p. 531).

A similar restriction on the power of the
representatives for the Village of Lyons to
compromise the public right to inspect public
records operates in this instance.

The agreement to conceal the terms of this
settlement is contrary to the FOIL unless
there is a specific exemption from disclosure.
Without one, the agreement is invalid insofar
as restricting the right of the public to
access."

Another more recent decision also required the disclosure of a
settlement agreement between a teacher and a school district
following the initiation of disciplinary proceedings under section
3020-a of the Education Law (Buffalo Evening News v. Board of
Education of the Hamburg School District and Marilyn Will, Supreme
Court, Erie County, June 12, 1987). Further, that decision relied
heavily upon an opinion rendered by this office.

It has been held in other circumstances that a promise or
assertion of confidentiality cannot be upheld, unless a statute
specifically confers confidentiality. In Gannett News Service v.
Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780
(1979)], a state agency guaranteed confidentiality to school
districts participating in a statistical survey concerning drug
abuse. The court determined that the promise of confidentiality
could not be sustained, and that the records were available, for
none of the grounds for denial appearing in the Freedom of
Information Law could justifiably be asserted. In a decision
rendered by the Court of Appeals, it was held that a state
agency's:

"long-standing promise of confidentiality to
the intervenors is irrelevant to whether the
requested documents fit within the
Legislature's definition of 'record' under
FOIL. The definition does not exclude or make
any reference to information labeled as
'confidential' by the agency; confidentiality
is relevant only when determining whether the
record or a portion of it is exempt..."
[Washington Post v. Insurance Department, 61
NY 2d 557, 565 (1984)].

Under the circumstances, particularly since the identity of
the person involved is known, it is my view that the terms of the
settlement would result in a permissible rather than an un-
warranted invasion of personal privacy, except to the extent that
disclosure involves intimate personal details in the nature, for
example, of unsubstantiated allegations.

Also of significance is §87(2)(g) of the Freedom of
Information Law, which permits an agency to 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. 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. A settlement agreement could likely be
characterized as "intra-agency" material. Nevertheless, I believe
that the record is reflective of a "final agency determination" and
would be accessible on that basis [see Farrell, Geneva Printing,
Sinicropi, supra], except to the extent that a different ground for
denial applies.

Further, in its discussion of the intent of the Freedom of
Information Law, the Court of Appeals in Capital Newspapers, supra,
found that the statute:

"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"
(67 NY 2d at 566).

In sum, I believe that the Freedom of Information Law as
judicially interpreted requires, at the very least, that the
settlement agreement in question be disclosed insofar as it
indicates terms involving the payment of public monies.

Enclosed are copies of Geneva Printing and Buffalo Evening
News, supra.

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to Village officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Trustees
Richard M. Devoe, Village Clerk
Mr. Spellman, Village Attorney