July 13, 2001

FOIL-AO-12802

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

I have received your letter in which you questioned the propriety of a denial of access to
records by Delaware County. The request involved "records pertaining to an investigation performed
by John Trela with regard to sexual harassment by William R. Moon of female employees." The
request was denied in its entirety under §87(2)(g) of the Freedom of Information Law.

From my perspective, rights of access would be dependent on the outcome of the
investigation. 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. In
my view, two of the grounds for denial would be pertinent to an analysis of rights of access.

Section 87(2)(b) states that an agency may withhold records insofar as disclosure would
result in "an unwarranted invasion of personal privacy. Although the standard concerning privacy
is flexible and may be subject to conflicting interpretations, the courts have provided substantial
direction regarding the privacy of public employees. 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. Further, 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 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].

Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing,
Scaccia and Powhida, dealt with situations in which determinations indicating the imposition of
some sort of disciplinary action pertaining to particular public employees were found to be available.
However, when allegations or charges of misconduct have not yet been determined or did not result
in disciplinary action, the records relating to such allegations may, according to case law, be
withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald
Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)].

In short, if there was no determination to the effect that an employee engaged in misconduct,
I believe that a denial of access to the records based upon considerations of privacy would be
consistent with law. I note, however, that there are several decisions indicating that the terms of
settlement agreements reached in lieu of disciplinary proceedings must generally be disclosed [see
Geneva Printing, supra; Western Suffolk BOCES v. Bay Shore Union Free School District,
Appellate Division, Second Department, NYLJ, May 22, 1998, ___ AD2d ___; Anonymous v. Board
of Education for Mexico Central School District, 616 NYS2d 867 (1994); and Paul Smith's College
of Arts and Science v. Cuomo, 589 NYS2d 106, 186 AD2d 888 (1992)].

The exception pertaining to the protection of personal privacy could also be invoked in my
opinion to shield the identities of alleged victims and perhaps others, such as witnesses.

The other provision of significance is that cited by the County, §87(2)(g), which 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.

In sum, if there was a final determination indicating misconduct on the part of a public
employee, based on judicial determinations, such a determination would be accessible. In that event,
other aspects of the records consisting of factual information would be available, except to the extent
that disclosure would constitute an unwarranted invasion of personal privacy. Again, however, if
there was no finding of misconduct, it appears that the request could have been denied to protect
personal privacy.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. James E. Eisel, Sr.
Christa Schafer