March 9, 1995
Ms. Susan G. Mick
510 Matthew Street
Elmira, NY 14901
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, unless otherwise indicated.
Dear Ms. Mick:
I have received your letter of February 4 in which you referred to a portion of an opinion prepared on your behalf on January 31.
Specifically, you focused on my advice that "insofar as letters of reference would identify the authors of those documents, I believe that they could be withheld." You wrote, however, that your request "had nothing to do with 'pubic employees'" but rather involved "what ever information was supplied" to the Department of Correctional Services by two entities that employed you. You added that you "would know the identity of the reference, since [you] had worked for the reference."
It appears that you misunderstood my comments. Although several aspects of the opinion pertained to records relating to public employees, neither the provision of the Freedom of Information Law that was cited nor my remarks concerning references of applicants for employment dealt directly or exclusively with public employees.
Further, I believe that the provision authorizing an agency to withhold personal references of applicants for employment is intended to enable the authors of those references, including employers outside of government, to be straightforward and honest in their remarks concerning an applicant. If an applicant had the right to obtain the recommendation offered by a former employer, the employer might choose to refrain from preparing such a document or be less than forthcoming in his or her commentary. In short, for those reasons, I believe that the records in question may be withheld.
I hope that the foregoing serves to clarify your understanding of my initial response.
Robert J. Freeman
cc: Anthony J. Annucci