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May 12, 1995

 

 

Ms. Rosalie J. Johnson
403 Maple Lane North
Valatie, NY 12184

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 Ms. Johnson:

As you are aware, I have received your letter of March 30. Once again, you have raised questions concerning the Ichabod Crane School District and its Board of Education.

I believe that the issues raised, with one exception, were considered exhaustively in an opinion addressed to you on April 4. The remaining unanswered issue involves a denial of access to records identifying members of the Board who met with the District's attorneys. The records access officer wrote that the names "are protected by the attorney-client privilege and are protected from disclosure to prevent an unwarranted invasion of personal privacy under Public Officers Law §89(2)."

In short, I disagree with the denial. For reasons expressed in the opinion of April 4, it appears that the meeting that is the subject of your inquiry might have been exempt from the Open Meetings Law due to the presence of an attorney-client relationship. If your request involved records indicating the nature of communications between Board members and their attorneys during the meeting, I would likely advise that the records would be exempted from disclosure in accordance with the attorney-client privilege and §87(2)(a) of the Freedom of Information Law. However, you did not ask for records reflective of privileged communications, but rather for the names only of Board members who attended. From my perspective, particularly because members of boards of educations are elected by the public and because the retention of attorneys by boards of education is a matter of public record, I do not believe that the names of board members who meet with their attorneys, without more, could be characterized as secret or privileged.

With respect to the claim that disclosure would result in an unwarranted invasion of personal privacy, although that standard 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, supra; 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 this instance, the presence of Board members at a meeting with their attorneys was, in my view, clearly relevant to the performance of their official duties. Further, in my opinion, disclosure of the identities of Board members who attended, without more, would indicate nothing personal or intimate about them. Consequently, I do not believe that disclosure would constitute an unwarranted invasion of personal privacy.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Tamara N. Proniske
Board of Education