April 4, 1995
Lawrence J. Tenenbaum, Esq.
Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman
300 Garden City Plaza
Garden City, NY 11530-3324
Dear Mr. Tenenbaum:
I have received your letter of March 1. You indicated that your firm represents the Lawrence Union Free School District, and you expressed your client's "strong objection" to an advisory opinion prepared on February 6. Consequently, you asked that I "reconsider [my] position."
Having reviewed the opinion, I see no rationale for so doing. To suggest that a figure specifying one's salary must be disclosed but that a final determination that serves as the basis for the salary, a merit rating, can remain confidential is in my view inconsistent. As you indicated, "any interested party [could] extrapolate the Superintendent's rating" based on a salary because "the Superintendent's salary increase is tied to his merit rating." That being so, how, logically, can it be contended that the salary is public but the rating is not? I know of no provision in the Freedom of Information Law that would justify a denial of access to such a rating.
I point out, too, that disclosure of performance ratings of public employees is not new. For a time, state agency employees were eligible to obtain monetary "performance awards" when they received outstanding ratings. It was advised then that the identities of those in receipt of awards had to be disclosed, even though release of that information could, by implication, identify those who did not receive outstanding ratings.
Lastly, your reference to my opinion as a "finding that the evaluation of a Superintendent of Schools may be disclosed" is too broad a description of my commentary. It was clearly advised that the most personal or intimate aspects of an evaluation, those in which opinions are expressed describing an employee's performance, i.e., subjective comments regarding one's strengths and weaknesses, criticism and the like, may be withheld. From my perspective, those aspects of an evaluation can and should be segregated from the portion of an evaluation at issue, the final rating, which serves as an agency's final determination and which is clearly relevant to the performance of one's official duties.
In short, notwithstanding your client's objection, I believe that the opinion prepared on February 6 is appropriate and justifiable in view of the language of the Freedom of Information Law, its clear intent, and its judicial interpretation.
Robert J. Freeman
cc: Dr. Stewart Weinberg