March 10, 1997
Mr. Raymond R. Swanno
51 Mandalay Drive
Poughkeepsie, NY 12603
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. Swanno:
I have received your letter of February 10 and the materials attached to it. You have sought an advisory opinion concerning a request directed to the Village of Millbrook. The request involves "all applications for employment, resumes, letters of reference, and any and all other documents reviewed for all applicants for position of police officer...during the period Jan. 1 thru Sept. 30, 1996."
In this regard, as indicated in previous correspondence, 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. Of primary significance are the provisions of §§87(2)(b) and 89(2)(b), which provide guidance concerning the ability to withhold records when disclosure would constitute "an unwarranted invasion of personal privacy."
While some aspects of the matter at issue were discussed in an opinion addressed to you in June of 1996, I believe that the advice rendered then focused on procedures, criteria for holding a position, and the applicants who were hired. From my perspective, however, there is a distinction between the extent to which records must be disclosed pertaining to applicants who were hired, as opposed to those who were not. In the case of those who were not hired, I believe that names and other identifying details pertaining to them may be justifiably be withheld. I point out that §89(7) specifies that the names and addresses of applicants for appointment to public employment need not be disclosed. After an applicant is hired, his her name is clearly public; if an applicant is never hired, there is no requirement that his or her name be disclosed.
It is noted that §89(2)(c) of the Freedom of Information Law states that disclosure shall not be construed to constitute an unwarranted invasion of personal privacy "when identifying details are deleted." In a decision in which a court ordered that certain deletions be made [Harris v. City University of New York [114 AD 2d 805 (1985)], a professor wanted to compare his qualifications with those of other faculty members who had been promoted to full professor during the preceding five years by reviewing their curricula vitae. In determining the issue, it was held that:
"the deletion of such identifying information as names, addresses and Social Security numbers will not impede petitioner's ability to compare his credentials to those of other professional employees, yet will protect the individuals involved from an unwarranted invasion of their privacy" (id., 805-806).
As such, the court ordered the disclosure of resumés, following the deletion of the kinds of identifying details described in the passage quoted above. In some instances, the deletion of identifying details may not be adequate to protect privacy. When that is so, an agency could likely withhold a record in its entirety to ensure against an unwarranted invasion of personal privacy.
I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees
Karen P. McLaughlin, Village Clerk