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October 22, 1996

 

 

Ms. Joyce M. Nunge
Business Education Teacher
Potsdam High School
29 Leroy Street
Potsdam, NY 13676

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. Nunge:

As you are aware, I have received your letter of October 7 in which you raised questions concerning the Freedom of Information Law.

By way of background, last month, you asked the Superintendent of the Potsdam School District for "a printout of the names of all teachers and their current salaries including salary step and approved graduate hours." You indicated by phone that the District has the ability to produce a printout containing the information sought. In response to the request, the Superintendent gave you a printout containing teachers' names and salaries, but "refused [your] request for the salary steps and graduate hours." You have asked whether the Superintendent "can, under the law", give you a printout containing the items in question, and if the answer is affirmative, whether you can distribute photocopies to others.

Based on the judicial interpretation of the Freedom of Information Law, the Superintendent must provide access to the information sought, and you may reproduce it as you see fit. 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, it is emphasized that 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.

The provision of most significance concerning the kinds of items at issue is, in my view, §87(2)(b). That provision permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion 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. Further, with regard to records pertaining to those persons, 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 the context of your inquiry, I note that in a decision cited earlier, Steinmetz, the records sought consisted of information similar to the items that you have requested. Specifically, the request in that case as described by the court involved the following items pertaining to teachers:

"1. Step hired on. 2. Year hired 3. present step & column as of 9/79 4. All written approvals for courses including name of course and number of credits if available 5....or if written approval is missing...all names of courses and number of credits (for each course) 6. Verification of satisfactory completion of each course or how this is done."

In short, the court determined that the information described above must be disclosed, with the exception of a transcript or similar document that would indicate individuals' grades. Additionally, in a recent decision rendered by the Appellate Division, Third Department, it was held that disclosure of "an individual's educational background" would not result in an unwarranted invasion of personal privacy [Ruberti & Ferlazzo v. Division of State Police, 641 A.D.2d 411, 415 (1996)].

Lastly, in general, when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

In my view, since the record in which you are interested must be disclosed under the Freedom of Information Law, once it is disclosed to you, you may do with it as you see fit.

In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to the Superintendent and the Board of Education.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Gary P. Snell, Superintendent
Board of Education