February 2, 1998
Mr. Arthur Springer
150 W. 80th Street -4A
New York, NY 10024
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. Springer:
I have received your letter of January 8 in which you raised a series of
questions relating to your difficulty in obtaining a "bio" from the New York
City Health and Hospitals Corporation pertaining to a member of its Board of
Directors. In conjunction with those questions, I offer the following
First, the Freedom of Information Law pertains to all agency records,
and §86(4) defines the term "record" broadly to include:
"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."
Therefore, if the Corporation maintains a copy of the bio, that document
would constitute a "record" that falls within the coverage of that statute.
Second, while agencies frequently accept and respond to requests
made orally, I believe that they may require that all requests for records be
made in writing [see Freedom of Information Law, §89(3)]. It has been
suggested that records access officers, whose duty includes coordinating an
agency's response to requests for records (see regulations promulgated by the
Committee on Open Government, §1401.2), use discretion in a manner
consistent with the Law's stated intent that agencies make records available
"wherever and whenever feasible." From my perspective, if certain records
are generally made available informally, without resort to written requests, all
who seek such records should be treated in like manner.
Third, 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
"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)].
Unless there is a basis for withholding records in accordance with the grounds
for denial appearing in §87(2), the use of the records, and other status of the
applicant, are in my opinion irrelevant.
Lastly, 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.
If the bio is question has been disclosed in its entirety, either in
response to requests, or perhaps by means of a news release or other public
disclosure, I believe that you would have the same right of access. On the
other hand, if the bio has not been disclosed it its entirety, one of the grounds
for denial would be pertinent to the matter. Specifically, §87(2)(b) authorizes
an agency to withhold records or portions thereof when disclosure would
constitute "an unwarranted invasion of personal privacy." Additionally,
§89(2)(b) provides a series of examples of unwarranted invasions of personal
privacy, the first of which was cited as the basis for denial. That provision
states that an unwarranted invasion of personal privacy includes:
"disclosure of employment, medical or credit
histories or personal references of applicants
In my opinion, the provisions cited above might serve to enable an agency to
withhold some aspects of a bio or resumé.
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 public officers and employees, 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, 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].
With respect to access to a bio or resumé of a public officer or
employee, if, for example, an individual must have certain types of experience,
educational accomplishments, licenses or certifications as a condition
precedent to serving in a particular position, those aspects of a bio or resume
would in my view be relevant to the performance of the official duties of not
only the individual to whom the record pertains, but also the agency. In my
view, to the extent that a bio or resumé contains information pertaining to the
requirements that must have been met to hold the position, it must be
disclosed, for I believe that disclosure of those aspects of such records would
result in a permissible rather than an unwarranted invasion of personal privacy.
Although some aspects of one's employment history may be withheld,
the fact of a person's public employment is a matter of public record, for
records identifying public employees, their titles and salaries must be prepared
and made available under the Freedom of Information Law [see §87(3)(b)].
However, reference to private employers could in my opinion be withheld.
Further, information included in a document that is irrelevant to criteria
required for holding the position, such as grade point average, class rank,
home address, social security number and the like, could in my opinion be
deleted prior to disclosure of the remainder of the record to protect against
an unwarranted invasion of personal privacy. I note that it has been held that
one's educational background must be disclosed [Ruberti, Girvin & Ferlazzo
v. NYS Division of State Police, 641 NYS2d, 411, 218 AD2d 494 (1996).]
I hope that the foregoing serves to enhance your understanding of the
Freedom of Information Law and that I have been of assistance.
Robert J. Freeman
cc: Records Access Officer