Mr. John M. Crotty
Deputy Chairman & Counsel
NYS Public Employment Relations Board
80 Wolf Road Albany, NY 12205
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 Mr. Crotty:
As you are aware, I have received your letter of March 3 in which you requested an advisory opinion concerning the Freedom of Information Law on behalf of the Public Employment Relations Board (PERB). You have asked whether a proposed "arbitrator appraisal form", if completed and returned to PERB by a party to a grievance arbitration, would be accessible in whole or in part under the Freedom of Information Law. You also asked whether PERB's "written analyses, compilations or summaries of the forms and responses for its internal uses...would be exempt from compulsory disclosure."
By way of background, you wrote that PERB has established a voluntary grievance arbitration program under which the parties select an arbitrator from PERB's panel of grievance arbitrators. The form in question would be sent to the parties following the award, and PERB would consider the forms, which are in the nature of evaluations, to be "confidential" and for its internal use. The appraisal forms would be used by PERB in its periodic evaluations of arbitrators to determine whether they should remain members of its grievance arbitration panel.
In this regard, I offer the following comments.
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. From my perspective, two of the grounds for denial are relevant to an analysis of public rights of access and, conversely, PERB's authority to withhold the records at issue.
It is my understanding that the forms would be completed by two categories of persons: representatives of employee unions, and employees or agents of employers. Especially relevant in the case of the former group is §87(2)(b), which permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Further, §89(2)(b) provides examples of unwarranted invasions of personal privacy. While I know of no judicial decision that deals with records analogous to the form, I believe that names or other identifying details pertaining to union representatives or union employees who complete the forms could be withheld based on the provisions cited above.
It is noted that the introductory language of §89(2)(b) indicates that an unwarranted invasion of personal privacy "includes, but shall not be limited to" the examples that follow. From my perspective, two of the examples offer guidance.
Section 89(2)(b)(i) refers to the disclosure of "personal references of applicants for employment" as an unwarranted invasion of personal privacy. While the evaluation form is not an employment reference, it serves a similar purpose. The person who completes the form, like a person preparing an employment reference, is asked to offer a candid appraisal of an individual, particularly in terms of how well or poorly that person carries out his or her work related duties. Because it is clear that the identity of a person who prepared an employment reference may be withheld, due to the similarity of the function in this instance, I believe that the same conclusion could be reached with respect to a representative or employee of a union who completes the form.
Additionally, §89(2)(b)(v) states that an unwarranted invasion of personal privacy includes: "disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency." The contents of the form would not reveal personal details relevant to the life of the person completing the form; however, it would include a representation of that person's feelings and opinions concerning an arbitrator. In my view, those kinds of expressions of opinions might be considered "personal" if they are to be honest. Further, I would contend that the names and other identifying details pertaining to those in the first category who completed the forms are not relevant to PERB. What is relevant is their opinion of the arbitrator.
For the foregoing reasons, I believe that PERB would have the authority to withhold identifying details concerning the union representatives or employees who complete the forms.
With respect to agency employees completing the forms, the issue as it relates to the protection of privacy, in my view, is more difficult. 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 those individuals 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 the official duties of a public officer or employee 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 officers or 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 the context of your inquiry, forms completed by public employees would not involve or relate to their accountability. Rather, completion of the forms would be ancillary to the performance of their routine duties. Consequently, identifying details regarding public employees who complete the forms arguably might be withheld as an unwarranted invasion of personal privacy.
Also of potential significance is the Personal Privacy Protection Law, which deals in part with the disclosure of records or personal information by state agencies concerning data subjects. A "data subject" is "any natural person about whom personal information has been collected by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal information" is defined to mean "any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject" [§92(7)]. For purposes of the Personal Privacy Protection Law, the term "record" is defined to mean "any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject" [§92(9)].
With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No agency may disclose any record or personal information", except in conjunction with a series of exceptions that follow. One of those exceptions involves when a record is "subject to article six of this chapter [the Freedom of Information Law], unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter". Section 89(2-a) of the Freedom of Information Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision two of this section if such disclosure is prohibited under section ninety-six of this chapter". Therefore, if a state agency cannot disclose records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the Freedom of Information Law.
Notwithstanding the foregoing as it relates to public employees completing the forms, all such forms when transmitted to PERB would constitute inter-agency materials that fall within the scope of §87(2)(g) of the Freedom of Information Law. That provision permits 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. The "ratings" circled would constitute opinions. Therefore, I believe that the substance of the forms when they are prepared by public employees could be withheld under §87(2)(g).
With regard to PERB's analyses, compilations or summaries of the forms and responses, all such records would constitute intra-agency materials. It is likely, however, that portions of those materials would constitute "statistical or factual tabulations or data" available under §87(2)(g)(i). In a situation unlike yours but pertinent nonetheless, an agency "gave a score" to firms submitting proposals in response to RFP's. Although the scores were derived from a compilation of opinions prepared in numerical form, the Court held that the scores, the figures based upon the opinions, were accessible under §87(2)(g)(i). In addition, in its discussion of what constitutes "factual data" in a recent decision, the Court of Appeals held that:
"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182)" (Gould, Scott and DeFelice v. New York City Police Department, __ NY2d __, November 26, 1996).
Based on the foregoing, the kinds of records prepared following the receipt and analysis of the forms would be accessible or deniable, in whole or in part, depending on their specific contents. Again, insofar as those records consist of opinions, recommendations, conjecture and the like, I believe that they may be withheld.
I hope that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.
Robert J. Freeman