June 26, 1995
Mr. Daniel G. Schum
Town of Ogden
269 Odgen Center Road
Spencerport, NY 14559-2024
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. Schum:
I have received your letter of June 16 in which you sought my views pertaining to the Freedom of Information Law on behalf of the Town Board of the Town of Ogden.
You wrote that the Town Board requested an advisory opinion from the Town Ethics Board concerning an alleged conflict of interest. The Ethics Board met several times, interviewed witnesses and employees and has rendered an advisory opinion to the Town Board, which has the ability to accept, reject or modify the opinion. In conjunction with the foregoing, you raised the following questions:
"1. Upon the Board taking action with respect to the advisory opinion of the Ethics Board is the advisory opinion and the decision of the Town Board discoverable and subject to public disclosure.
2. Pursuant to the provisions of the Ethics Code of the Town of Ogden, it provides that such advisory opinions are confidential and in no event shall the identity of the employee be disclosed by the Board of Ethics. Does this provision preclude the Town Board from disclosing the identity of the employee in question?
3. With respect to the names of the various employees and/or witnesses who were interviewed by the Board of Ethics, could or should their names be deleted from the advisory opinion, if mentioned?"
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.
In my view, an assertion or claim of confidentiality, unless it is based upon a statute, is likely meaningless. When confidentiality is conferred by a statute, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of confidentiality without more, would not in my opinion guarantee or require confidentiality.
Moreover, it has been held by several courts, including the Court of Appeals, that an agency's regulations or the provisions of a local enactment, such as an administrative code, local law, charter or ordinance, for example, do not constitute a "statute" [see e.g., Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 Ad 2d 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)]. For purposes of the Freedom of Information Law, a statute would be an enactment of the State Legislature or Congress. Therefore, a local enactment cannot confer, require or promise confidentiality. This not to suggest that many of the records used, developed or acquired in conjunction with an ethics code must be disclosed; rather, I am suggesting that those records may in some instances be withheld in accordance with the grounds for denial appearing in the Freedom of Information Law, and that any local enactment that is inconsistent with that statute would be void to the extent of any such inconsistency.
It is likely in my view that two the grounds for denial would be particularly relevant with respect to the records in question.
Section 87(2)(b) of the Freedom of Information Law authorizes an agency to withhold records when disclosure would result in an unwarranted invasion of personal privacy. Although the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public employees. It is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others. With regard to records pertaining to public employees, the courts have found that, as a general rule, records that are relevant to the performance of a public employee's 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, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); 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].
Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing, Scaccia and Powhida, dealt with situations in which determinations indicating the imposition of some sort of disciplinary action pertaining to particular public employees were found to be available. However, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may, in my view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)]. Further, to the extent that charges are dismissed or allegations are found to be without merit, I believe that they may be withheld based on considerations of privacy.
The other ground for denial of significance, §87(2)(g), enables an agency to 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.
In construing §87(2)(g), one decision, McAulay v. Board of Education, involved records reviewed by a Chancellor's advisory panel designated to review and unsatisfactory rating of a teacher and which was later affirmed by the Court of Appeals. In McAulay, the Appellate Division stated that:
"The Freedom of Information Law, as recently amended (L 1977, ch 933, eff Jan. 1, 1978), specifically exempts intra- and inter-agency materials which are not: statistical or factual tabulations or data; instructions to staff that affect the public; or final agency policy or determination (Public Officers Law, §87, subd 2, par [g]. Petitioner contends that the subject documents represent the application of agency policy and rules to a specific case and that to deny disclosure would allow appellants to perpetuate their tradition of maintaining a body of 'secret agency law' in this area. Appellants, on the other hand, contend that the subject documents represent precisely the kind of predecisional information which is prepared in order to assist the decision-making process and, hence, exempt from disclosure. We agree with appellants. The hearing panel documents or report sought are not final agency determinations or policy. Rather, they are predecisional material, prepared to assist an agency decision maker (here, the Chancellor) in arriving at his decision. Only the latter has the legal authority to decide whether the rating should stand. The panel's recommendations and reasoning are not binding upon him and there is no evidence that he adopts its reasoning as his own when he adopts its conclusion. Petitioner's desire to bring to light the policies and rules governing the appellants' evaluation of what constitutes a satisfactory teacher is commendable. However, the real problem here, considering the administrative process set up in the appellant board's by-laws, is the absence of any obligation upon the Chancellor to explain his decisions. The Freedom of Information Law does not require an agency to develop a body of written law or policy. Nor does it permit us to substitute therefore a compilation of nonfinal recommendations which may be based upon reasoning rejected or never adopted by the ultimate decision maker, the disclosure of which might not only impinge upon the agency's predecisional processes but affirmatively mislead the public" [61 AD 2d 1048, aff'd 48 NY 2d 659 (1978)].
Applying the preceding points to the issues that you raised, the advisory opinion prepared by the Ethics Board could in my view be withheld, except in one circumstance. If that opinion was rejected or modified, I believe that it would be deniable under both §87(2)(b) as an unwarranted invasion of personal privacy and under §87(2)(g), for it consists of a recommendation to the Town Board that is not final. The only situation in my view in which the opinion of the Ethics Board would be public would involve the case in which the Town Board clearly adopts the opinion as its own, thereby making the opinion a final determination, and finds that an officer or employee engaged in misconduct (see e.g., Miller v. Hewlett-Woodmere Union Free School District, Supreme Court, Nassau County, NYLJ, May 16, 1990, in which recommendations were uniformly adopted as the agency's final determination). For reasons discussed earlier, insofar as a final determination reached by the Town Board indicates that an officer or employee engaged in misconduct or failed to comply with law, I believe that the determination would be available, including the name of the officer or employee.
With regard to your third question, ordinarily names or other identifying details pertaining to witnesses or other interviewed by the Board of Ethics could in my opinion be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.
Lastly, it is noted that the Freedom of Information Law is permissive. While an agency may withhold records in appropriate circumstances, it is not required to do so. As stated by the Court of Appeals:
"while an agency is permitted to restrict access to those records falling which the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY 2d 562, 567 (1986)].
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman