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  January 6, 1995

 

Mr. Gerard Giuliano
Deputy County Attorney
County of Nassau
Nassau County Executive Building
One West Street
Mineola, NY 11501-4820

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Giuliano:

As you are aware, I have received your letter of November 9 and a variety of related materials. For reasons unknown, your correspondence did not reach this office until November 25. I hope that you will accept my apologies for the delay in response.

The materials relate to an Article 78 proceeding initiated by William J. McDonald, Superintendent of the Floral Park-Bellerose Union Free School District (the District) against the Nassau County Civil Service Commission (the Commission) and Karl Kampe, Executive Director of the Commission, following a denial of access to a record sought under the Freedom of Information Law. As a matter of policy and to ensure fairness, this office will not prepare an advisory opinion at the request of a party in litigation brought under any of the statutes within the Committee's jurisdiction. However, in this instance, since both you and your adversary "believe an advisory opinion from [this] office would be insightful", I am pleased and honored to have been asked to resolve the matter, and I will seek to do so.

By way of background, in a letter prepared on November 3, 1993 by Mr. Kampe, Dr. McDonald was informed that it had "been brought to the attention" of the Commission that two employees of the District might have been performing "out of title" work. Mr. Kampe wrote that the continued performance of out of title duties could result in the withdrawal of payroll certification. He added that if the employees in question were performing inappropriate duties, it would be "incumbent upon [Dr. McDonald] to correct this situation immediately", and that "failure to do so is a violation of the Civil Service Law." On that letter appears a "cc" indicating that a copy was sent to Barbara Russell. Ms. Russell, the person who brought the matter to the attention of the Commission, the "complainant", is employed as a field representative by the Civil Service Employees Association, Inc. (CSEA), a public employee union. According to Mr. McDonald's Verified Petition, Ms. Russell was "assigned to the non-professional unit of public employees" within the District. That assertion that has not been contradicted in any way.

In an effort to learn more of the basis of the allegations, on December 12, 1993, Dr. McDonald directed a request to the Commission in which he asked to inspect "the complaint by Barbara Russell, CSEA field Rep vis a vis Paul Gustafsson Head Custodian I, and Teacher Aide & Food Service Worker." The request was denied on the ground that disclosure would result in an "unwarranted invasion of personal privacy". On December 20, Kevin A. Seaman, attorney for the District, appealed the denial on behalf of Dr. McDonald. In a determination rendered on June 6, 1994, the denial was sustained by Owen B. Walsh, Nassau County Attorney, again on the ground that release of the record would constitute an unwarranted invasion of personal privacy.

The materials prepared by both parties refer to decisions or opinions involving access to complaints where the identity of a complainant is not known. In this instance, the matter pertains to a situation in which the identity of the complainant is known, and the question is whether the complaint may justifiably be withheld. Based on the ensuing analysis, I believe that the record must be disclosed.

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, as you are aware, when a member of the public complains to government, it has generally been advised that the substance of a complaint is available, but that those portions of the complaint which identify complainants may be withheld on the ground that disclosure would result in an unwarranted invasion of personal privacy in conjunction with §§87(2)(b) and 89(2)(a) and (b) of the Freedom of Information Law.

From my perspective, since the complaint in the case was made by an individual performing a professional or business function, as a field representative of CSEA, there is nothing "personal" about the document insofar as it pertains to her. There are several judicial decisions, both New York State and federal, which in my opinion are relevant, for they pertain to records about individuals in their business or professional capacities, rather than their personal capacities.

For instance, one decision involved a request for the names and addresses of mink and ranch fox farmers from a state agency (ASPCA v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). In granting access, the court relied in part and quoted from an opinion rendered by this office in which it was advised that "the provisions concerning privacy in the Freedom of Information Law are intended to be asserted only with respect to 'personal' information relating to natural persons". Further, the court held that:

"...the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence. In interpreting the Federal Freedom of Information Law Act (5 USC 552), the Federal Courts have already drawn a distinction between information of a 'private' nature which may not be disclosed, and information of a 'business' nature which may be disclosed (see e.g., Cohen v. Environmental Protection Agency, 575 F Supp. 425 (D.C.D.C. 1983)."

In another more recent decision, Newsday, Inc. v. New York State Department of Health (Supreme Court, Albany County, October 15, 1991)], data acquired by the State Department of Health concerning the performance of open heart surgery by hospitals and individual surgeons was requested. Although the Department provided statistics relating to surgeons, it withheld their identities. In response to a request for an advisory opinion, it was advised by this office, based upon the New York Freedom of Information Law and judicial interpretations of the federal Freedom of Information Act, that the names should be disclosed, for the data related to professional licensees acting in the performance of professional activities. The court agreed and cited the opinion rendered by this office.

Like the Freedom of Information Law, the federal Act includes an exception to rights of access designed to protect personal privacy. Specifically, 5 U.S.C. 552(b)(6) states that rights conferred by the Act do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." In construing that provision, federal courts have held that the exception:

"was intended by Congress to protect individuals from public disclosure of 'intimate details of their lives, whether the disclosure be of personnel files, medical files or other similar files'. Board of Trade of City of Chicago v. Commodity Futures Trading Com'n supra, 627 F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EOA, 484 F.2d 843, 845 (4th Cir. 1973). Although the opinion in Rural Housing stated that the exemption 'is phrased broadly to protect individuals from a wide range of embarrassing disclosures', 498 F.2d at 77, the context makes clear the court's recognition that the disclosures with which the statute is concerned are those involving matters of an intimate personal nature. Because of its intimate personal nature, information regarding 'marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payment, alcoholic consumption, family fights, reputation, and so on' falls within the ambit of Exemption 4. Id. By contrast, as Judge Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399, the decisions of this court have established that information connected with professional relationships does not qualify for the exemption" [Sims v. Central Intelligence Agency, 642 F.2d 562, 573-573 (1980)].

In Cohen, the decision cited in ASPCA v. Department of Agriculture and Markets, supra, it was stated pointedly that: "The privacy exemption does not apply to information regarding professional or business activities...This information must be disclosed even if a professional reputation may be tarnished" (supra, 429). Similarly in a case involving disclosure of those whose grant proposals were rejected, it was held that:

"The adverse effect of a rejection of a grant proposal, if it exists at all, is limited to the professional rather than personal qualities of the applicant. The district court spoke of the possibility of injury explicitly in terms of the applicants' 'professional reputation' and 'professional qualifications'. 'Professional' in such a context refers to the possible negative reflection of an applicant's performance in 'grantsmanship' - the professional competition among research scientists for grants; it obviously is not a reference to more serious 'professional' deficiencies such an unethical behavior. While protection of professional reputation, even in this strict sense, is not beyond the purview of exemption 6, it is not at its core" [Kurzon v. Department of Health and Human Services, 649 F.2d 65, 69 (1981)].

The standard in the New York Freedom of Information Law, as in the case of the federal Act, is subject to conflicting points of view, and reasonable people often differ with respect to issues concerning personal privacy. In this instance, the record in question, although identifiable to an individual characterized as a "complainant", pertains to her professional duties as a CSEA field representative. Unlike an individual's social security number or medical records identifiable to patients, which would involve unique and personal details of people's lives, or a member of the public who complains to government about an event relating to his or her life, the record sought is not "personal" in my opinion; rather, again, it deals with functions carried out by an individual in a business capacity. In short, in my view and as suggested in the decisions cited above, the exception concerning privacy does not extend to the kind of record at issue.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Kevin A. Seaman