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June 5, 1995

 

Mr. Peter R. Kehoe
Corporation Counsel
City of Troy Department of Law
City Hall, One Monument Square
Troy, NY 12190

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. Kehoe:

I have received your letter of May 11 in which you referred to a request for "[a]ny and all records which document the suspension or other disciplinary action and the reason for such action, taken by the City against former City employee...during his tenure with the City of Troy." You added that the City maintains a single one page document responsive to the request and described its contents as follows:

"-the subject of the document is Notice of Discipline (and/or Discharge)

-part of the document describes the alleged acts of misconduct

-part of the document sets forth the penalty which flows from the alleged acts

-part of the document sets forth the charged employee's rights pursuant to the CSEA agreement with the City of Troy.

-typed on the document, immediately following the employee's rights section is the following:

I have read the foregoing notice of discipline and penalty; am aware of and am fully familiar with my rights pursuant to the appropriate collective bargaining agreement; admit to charges herein and accept the penalty so stated. I hereby request that copies of these charges not be forwarded to any CSEA personnel."

The employee's signature follows, and beneath the signature appears the ensuing statement:

"CONDUCT SUCH AS THIS IS UNACCEPTABLE AND ANY FURTHER INCIDENT WILL RESULT IN IMMEDIATE DISMISSAL".

You have asked whether in my opinion the record in question must be disclosed in its entirety, particularly in view of provisions concerning the protection of privacy and those portions of the record describing "alleged acts of misconduct", as opposed to final agency determinations.

Based upon your description of the record and the judicial interpretation of the Freedom of Information Law, I believe that the record must be disclosed in toto. In this regard, I offer the following comments.

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, there is nothing in the Freedom of Information Law that deals specifically with personnel records or personnel files. Further, the nature and content of so-called personnel files may differ from one agency to another, and from one employee to another. In any case, neither the characterization of documents as "personnel records" nor their placement in personnel files would necessarily render those documents "confidential" or deniable under the Freedom of Information Law (see Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980). On the contrary, the contents of those documents serve as the relevant factors in determining the extent to which they are available or deniable under the Freedom of Information Law. Both of the grounds for denial to which you alluded are relevant to an analysis of the matter; neither, however, could in my view serve to justify a denial of access.

Perhaps of greatest significance is §87(2)(b), which permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy". In addition, as you are aware, §89(2)(b) provides a series of examples of unwarranted invasions of personal privacy.

While the standard concerning privacy 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. 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].

The other ground for denial of significance, §87(2)(g), states that an agency may 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, unless a different ground
for denial could appropriately be asserted. 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. Insofar as a request involves final agency determinations, I believe that those determinations must be disclosed, again, unless a different ground for denial could be
asserted.

In terms of the judicial interpretation of the Freedom of Information Law, I point out that in situations in which allegations or charges have resulted in the issuance of a written
reprimand, disciplinary action, or findings that public employees have engaged in misconduct, records reflective of those kinds of determinations have been found to be available, including the names of those who are the subjects of disciplinary action [see Powhida v. City of Albany, 147 AD 2d 236 (1989); also Farrell, Geneva Printing, Scaccia and Sinicropi, supra]. 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 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.:

It was also found that the record indicating the terms of the settlement constituted a final agency determination available under the Law. The decision states that:

"It is the terms of the settlement, not just a notation that a settlement resulted, which
comprise the final determination of the matter. The public is entitled to know what
penalty, if any, the employee suffered...The instant records are the decision or final
determination of the village, albeit arrived at by settlement..."

Another decision also required the disclosure of a settlement agreement between a teacher and a school district following the initiation of disciplinary proceedings under §3020-a of the
Education Law (Buffalo Evening News v. Board of Education of the Hamburg School District and Marilyn Well, 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)].

Most recently, in a case involving facts in many ways similar to those that you presented, it was held in Anonymous v. Board of Education [616 NYS 2d 867 (1994)] that:

"...it is disingenuous for petitioner to argue that public disclosure is permissible...only
where an employee is found guilty of a specific charge. The settlement agreement at
issue in the instant case contains the petitioner's express admission of guilt to a
number of charges and specifications. This court does not perceive the distinction
between a finding of guilt after a hearing and an admission of guilt insofar as protection
from disclosure is concerned" (id., 870).

The court also referred to contentions involving privacy as follows:

"Petitioner contends that disclosure of the terms of the settlement at issue in this case
would constitute an unwarranted invasion of his privacy prohibited by Public Officers Law
§ 87(2)(b). Public Officers Law § 89(2)(b) defines an unwarranted invasion of personal
privacy as, in pertinent part, '(i) disclosure of employment, medical or credit histories or
personal references of applicants for employment.' Petitioner argues that the agreement itself provides that it shall become part of his personnel file and that material
in his personnel file is exempt from disclosure..." (id.).

In response to those contentions, the decision states that:

"This court rejects that conclusion as establishing an exemption from disclosure not created by statute (Public Officers Law § 87[2][a]), and not within the contemplation of the 'employment, medical or credit history' language found under the definition of 'unwarranted invasion of personal privacy' at Public Officers Law § 89(2)(b)(i). In fact, the information sought in the instant case, i.e., the terms of settlement of charges of misconduct lodged against a teacher by the Board of Education, is not information in which petitioner has any reasonable expectation of privacy where the agreement contains the teacher's admission to much of the misconduct charged. The agreement does not contain details of the petitioner's personal history-but it does contain the details of admitted misconduct toward students, as well as the agreed penalty. The information is clearly of significant interest to the public, insofar as it is a final determination and disposition of matters within the work of the Board of Education and reveals the process of and basis for government decision-making. This is not a case where petitioner is to be protected from possible harm to his professional reputation from unfounded accusations (Johnson Newspaper Corp. v. Melino, 77 N.Y.2d 1, 563 N.Y.S.2d 380, 564 N.E.ed 1046), for this court regards the petitioner's admission to the conduct described in the agreement as the equivalent of founded accusations. As such, the agreement is tantamount to a final agency determination not falling within the privacy exemption of FOIL 'since it was not a disclosure of employment history.'" (id., 871).

In sum, based upon judicial decisions involving issues analogous to those that you raised, I believe that the record sought must be disclosed in its entirety.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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