Ms. Eve B. Burton
Assistant General Counsel
450 West 33rd Street
New York, NY 10001-2681
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. Burton:
As you are aware, I have received your letter of November 7 and a variety of related correspondence. You have sought an advisory opinion concerning a request by a reporter for the Daily News for "diaries or logs that may be maintained" by Mayor Giuliani or other "certain designated officials which reflected meetings with the law firm of Fischbein, Badillo, et al. or its representatives" during a particular period of time.
In a letter addressed to me by David Karnovsky, Chief of the Division of Legal Counsel at the New York City Law Department, it was stated that "access was granted with respect to entries of meetings at which City business was transacted." He wrote that "[a]ccess was denied only with respect to entries reflecting engagements which were unrelated to the duties of the officials in question and which did not involve the expenditure of public funds." Mr. Karnovsky concluded by expressing the belief, based on the judicial interpretation of the Freedom of Information Law and opinions rendered by this office, that "such entries are within the zone of privacy protected by FOIL." It is your view that "only personal matters, such as when a mayor went to church and what time he went to bed, would be excludable under FOIL's privacy exemption."
In this regard, I offer the following comments.
First, 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. There appears to be no dispute that entries that are relevant to the performance of the duties of the officials in question or those involving an expenditure of public money must be disclosed. With respect to the remaining entries, which are referenced in Mr. Karnovsky's statement, the only question in my view involves the extent to which disclosure would constitute "an unwarranted invasion of personal privacy" pursuant to §87(2)(b).
Both you and City officials appear to have relied in part upon an advisory opinion prepared on June 20, 1990 (FOIL AO 6136). Near the end of that opinion, I wrote as follows:
"If an entity in an appointment book or phone log is unrelated to the performance of one's official duties or the expenditure of public money, for example, as in the cases of a reference to an appointment with a doctor or a call from a spouse, I believe that those portions of the records could be deleted on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Further, if reference is made to a student or the parent of a student, I believe that privacy considerations arise not with respect to the public employee acting in the performance of his or her duties, but rather with respect to the parent or the student. As such, to the extent that the records include references to students or their parents, for example, I believe that those references could be deleted prior to public disclosure.
The excerpted statement was based on a series of judicial interpretations of the Freedom of Information Law in which the courts have considered the privacy of public employees. From my perspective, according to those decisions, 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. 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 items relating to public employees are irrelevant to the performance of their 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, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal attorney that could indicate how that person spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social security numbers].
In my view, no decision rendered to date is determinative of the issue as it relates to your request. However, that an entry in an appointment calendar does not relate to the transaction of official business or the expenditure of public money does not in my opinion necessarily remove it from the scope of public rights of access or into a protected "zone of privacy." I believe that it is the nature of the entry that must be considered in ascertaining whether disclosure would constitute a permissible or an unwarranted invasion of personal privacy.
Although it dealt with whether certain documents constituted "records" subject to the Freedom of Information Law, a Court of Appeals decision pertaining to documentation in possession of a village involving a lottery conducted by a volunteer fire company may be useful in offering guidance. In considering the matter, it was held by the Court that:
"The village officials...insist that, because the fire department engages in both governmental and private activities, the records of its nongovernmental functions in any event are unavailable to Freedom of Information requestors. Further examination of the statute readily refutes the notion...
"Nor has the village pointed to anything in the balance of the statute to support its nongovernmental function theory...For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons. The present case provides its own illustration. If we were to assume that a lottery and fire fighting were generically separate and distinct activities, at what point, if at all, do we divorce the impact of the fact that the lottery is sponsored by the fire department from its success in soliciting subscriptions from the public? How often does the taxpayer-lottery participant view his purchase as his 'tax' for the voluntary public service of safeguarding his or her home from fire? And what of the effect on confidence in government when this fund-raising effort, though seemingly an extracurricular event, ran afoul of our penal law?" [Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575, 580-581 (1980)].
In the instant situation, the issue of privacy must be viewed, in my opinion, in consideration of the fact that the records sought pertain to the highest City officials, most particularly, the Mayor. Might there be a distinction in terms of privacy between the notation pertaining to the birthday party of the Mayor's child and that of the birthday party of a political party leader, a union president or a major campaign contributor? In the case of child's birthday party, I believe that such a detail is intimate, personal and likely nobody's business. With respect to the other appointments, even though they may be social events that do not involve the transaction of official business or the expenditure of public money, they might nonetheless be events in which a mayor or other high government official could assert influence of a governmental nature or be influenced regarding governmental matters. Influence might not be an issue or a possibility when the Mayor visits a physician for an annual checkup or to deal with a particular medical matter, and entries or notations of that nature could in my view be withheld. Different, in terms of privacy, is the lunch appointment with a friend that is ostensibly social in nature, when the friend is influential or powerful, or serves as an unpaid but de facto advisor. Should an entry regarding a luncheon with the editor of the Daily News where no official business is transacted and there is no expenditure of public money be secret? In my opinion, the privacy considerations in that kind of situation or the others described above would be less than significant, especially since the entries reveal nothing about the nature of conversations between the Mayor and others.
On several occasions, the case of Kerr v. Koch (Supreme Court, New York County, February 1, 1988) was discussed with you and City officials. In am in general agreement with those officials that the primary holding in that decision involved entries in an appointment calendar that in some way related to the expenditure of public money. However, the Court appears to have recognized the distinction between entries relating to an expense account and others, and found, in essence, that there may be no distinction in terms of the protection of privacy. In Kerr, the Court appears to have found that the Mayor of New York City, due to that person's unique position, has a greater duty to be accountable than others, even other public employees, for it was asserted that:
"a Mayor thrusts himself into a public arena for the assessment of all of his qualities by the public whose vote of confidence is solicited. The public, then, has a right to know a politician's friends and associates. A natural derivation from that right is the additional one to know how the Mayor's expense account is used and for whom. Clearly, such a record is a matter of public concern and, in and of itself, defines no unwarranted invasion of privacy" (emphasis added).
Again, the Court appears to have found that the public's right to know a politician's friends and associates is separate from or in addition to the right to know how the Mayor expends public funds. Similarly, it was stated later in the decision that:
"There is no suggestion of scandal attached to those who are associates of the Mayor, whether they be servants of the public or private individuals. Accordingly, there is nothing unwarranted, excessive or unjustifiable in revealing the names of those with whom the Mayor had appointments from time to time. As a public person invested with a public trust, he should be accountable for his associations."
To be sure, I am not suggesting that a mayor has no privacy. References to purely personal activities, such as a child's birthday, a family gathering or a medical matter, could in my view be withheld as an unwarranted invasion of personal privacy. However, in those instances in which a mayor may influence or be influenced in that person's capacity as mayor, notwithstanding the absence of an expenditure of public moneys, a contention that disclosure would constitute an unwarranted invasion of personal privacy would appear to be unsubstantial in many cases.
Lastly, as you are aware, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:
"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."
In another decision rendered by the Court of Appeals, it was held that:
"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, supra, 571 (1979)].
I hope that I have been of some assistance.
Robert J. Freeman
cc: Anthony P. Coles