FOIL-AO-13707

November 15, 2002

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence,
unless otherwise indicated.

Dear

I have received your letter and the materials attached to it. Based on our conversation, you
are seeking an advisory opinion concerning a denial of access to "[a]ll documentation as to why Jill
Lee was terminated from BOCES." Jill Lee is your former spouse, and as I understand the situation,
was a school principal at the time of her termination. It is unclear whether she was tenured. The
request was denied on the ground that "disclosure would constitute an unwarranted invasion of
personal privacy."

While some aspects of the documentation likely could properly have been withheld, it is also
likely that others should have been disclosed. 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, 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. Two of the
grounds for denial to which you alluded are relevant to an analysis of the matter; neither, however,
could in my view serve to justify a denial of access.

Perhaps of greatest significance is the provision to which the agency alluded, §87(2)(b),
which permits an agency to withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy". In addition, §89(2)(b) provides a series of examples of
unwarranted invasions 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. 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, 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].

The other ground for denial of significance, §87(2)(g), states that an agency may 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. Insofar
as a request involves a final agency determination, I believe that such a determination must be
disclosed, again, unless a different ground for denial could be asserted.

In terms of the judicial interpretation of the Freedom of Information Law, I point out that in
situations in which allegations or charges have resulted in the issuance of a written reprimand,
disciplinary action, or findings that public employees have engaged in misconduct, records reflective
of those kinds of determinations have been found to be available, including the names of those who
are the subjects of disciplinary action [see Powhida v. City of Albany, 147 AD 2d 236 (1989); also
Farrell, Geneva Printing, Scaccia and Sinicropi, supra].

In Geneva Printing, supra, a public employee charged with misconduct and in the process of
an arbitration hearing engaged in a settlement agreement with a municipality. One aspect of the
settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding
the agreement of confidentiality, which apparently was based on an assertion that "the public interest
is benefitted by maintaining harmonious relationships between government and its employees", the
court found that no ground for denial could justifiably be cited to withhold the agreement. On the
contrary, it was determined that:

"the citizen's right to know that public servants are held accountable
when they abuse the public trust outweighs any advantage that would
accrue to municipalities were they able to negotiate disciplinary
matters with its employee with the power to suppress the terms of any
settlement".

In so holding, the court cited a decision rendered by the Court of Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d 527), the Court of
Appeals in concluding that a provision in a collective bargaining
agreement which bargained away the board of education's right to
inspect personnel files was unenforceable as contrary to statutes and
public policy stated: 'Boards of education are but representatives of
the public interest and the public interest must, certainly at times,
bind these representatives and limit or restrict their power to, in turn,
bind the public which they represent. (at p. 531).

A similar restriction on the power of the representatives for the
Village of Lyons to compromise the public right to inspect public
records operates in this instance.

The agreement to conceal the terms of this settlement is contrary to
the FOIL unless there is a specific exemption from disclosure.
Without one, the agreement is invalid insofar as restricting the right
of the public to access.:

It was also found that the record indicating the terms of the settlement constituted a final agency
determination available under the Law. The decision states that:

"It is the terms of the settlement, not just a notation that a settlement
resulted, which comprise the final determination of the matter. The
public is entitled to know what penalty, if any, the employee
suffered...The instant records are the decision or final determination
of the village, albeit arrived at by settlement..."

Another decision also required the disclosure of a settlement agreement between a teacher
and a school district following the initiation of disciplinary proceedings under §3020-a of the
Education Law, which pertains to charges against tenured persons, (Buffalo Evening News v. Board
of Education of the Hamburg School District and Marilyn Will, Supreme Court, Erie County, June
12, 1987). Further, that decision relied heavily upon an opinion rendered by this office.

It has been held in variety of circumstances that a promise or assertion of confidentiality
cannot be upheld, unless a statute specifically confers confidentiality. In Gannett News Service v.
Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency
guaranteed confidentiality to school districts participating in a statistical survey concerning drug
abuse. The court determined that the promise of confidentiality could not be sustained, and that the
records were available, for none of the grounds for denial appearing in the Freedom of Information
Law could justifiably be asserted. In a decision rendered by the Court of Appeals, it was held that
a state agency's:

"long-standing promise of confidentiality to the intervenors is
irrelevant to whether the requested documents fit within the
Legislature's definition of 'record' under FOIL. The definition does
not exclude or make any reference to information labeled as
'confidential' by the agency; confidentiality is relevant only when
determining whether the record or a portion of it is exempt..."
[Washington Post v. Insurance Department, 61 NY 2d 557, 565
(1984)].

In another decision involving a settlement agreement between a school district and a teacher,
it was held in Anonymous v. Board of Education [616 NYS 2d 867 (1994)] that:

"...it is disingenuous for petitioner to argue that public disclosure is
permissible...only where an employee is found guilty of a specific
charge. The settlement agreement at issue in the instant case contains
the petitioner's express admission of guilt to a number of charges and
specifications. This court does not perceive the distinction between
a finding of guilt after a hearing and an admission of guilt insofar as
protection from disclosure is concerned" (id., 870).

The court also referred to contentions involving privacy as follows:

"Petitioner contends that disclosure of the terms of the settlement at
issue in this case would constitute an unwarranted invasion of his
privacy prohibited by Public Officers Law § 87(2)(b). Public Officers
Law § 89(2)(b) defines an unwarranted invasion of personal privacy
as, in pertinent part, '(i) disclosure of employment, medical or credit
histories or personal references of applicants for employment.'
Petitioner argues that the agreement itself provides that it shall
become part of his personnel file and that material in his personnel
file is exempt from disclosure..." (id.).

In response to those contentions, the decision stated that:

"This court rejects that conclusion as establishing an exemption from
disclosure not created by statute (Public Officers Law § 87[2][a]), and
not within the contemplation of the 'employment, medical or credit
history' language found under the definition of 'unwarranted invasion
of personal privacy' at Public Officers Law § 89(2)(b)(i). In fact, the
information sought in the instant case, i.e., the terms of settlement of
charges of misconduct lodged against a teacher by the Board of
Education, is not information in which petitioner has any reasonable
expectation of privacy where the agreement contains the teacher's
admission to much of the misconduct charged. The agreement does
not contain details of the petitioner's personal history-but it does
contain the details of admitted misconduct toward students, as well
as the agreed penalty. The information is clearly of significant
interest to the public, insofar as it is a final determination and
disposition of matters within the work of the Board of Education and
reveals the process of and basis for government decision-making.
This is not a case where petitioner is to be protected from possible
harm to his professional reputation from unfounded accusations
(Johnson Newspaper Corp. v. Melino, 77 N.Y.2d 1, 563 N.Y.S.2d
380, 564 N.E.ed 1046), for this court regards the petitioner's
admission to the conduct described in the agreement as the equivalent
of founded accusations. As such, the agreement is tantamount to a
final agency determination not falling within the privacy exemption
of FOIL 'since it was not a disclosure of employment history.'" (id.,
871).
In LaRocca v. Board of Education of Jericho Union Free School District [220 AD 2d 424,
632 NYS 2d 576 (1995)], charges were initiated under 3020-a of the Education Law, but were later
"disposed of by negotiation and settled by an Agreement" (id., 577) and withdrawn. The court
rejected claims that the record could be characterized as an employment history that could be
withheld as an unwarranted invasion of privacy, and found that a confidentiality agreement was
invalid. Specifically, it was stated that:

"Having examined the settlement agreement, we find that the entire
document does not constitute an 'employment history' as defined by
FOIL (see, Matter of Hanig v. State of New York Dept. of Motor
Vehicles, supra) and it is therefore presumptively available for public
inspection (see, Public Officers Law  87[2]; Matter of Farbman &
Sons v. New York City Health and Hosps. Corp., supra, 62 N.Y.2d
75, 476 N.Y.S.2d 69, 464 N.E.2d 437). Moreover, as a matter of
public policy, the Board of Education cannot bargain away the
public's right of access to public records (see, Board of Educ., Great
Neck Union Free School Dist. v. Areman, 41 N.Y.2d 527, 394
N.Y.S.2d 143, 362 N.E.2d 943)" (id., 578, 579).

In sum, there may be details within the documentation that pertains to your former spouse
and others that may be of an intimate nature or which are largely irrelevant to the performance of
her official duties. I believe that those aspects of the records could be withheld on the ground that
disclosure would result in an unwarranted invasion of personal privacy. Similarly, charges that were
not sustained or that were withdrawn could, in my view, also be withheld for the same reason.
Internal communications between or among District employees reflective of opinions or
recommendations could, as suggested earlier, be withheld under §87(2)(g). However, for reasons
previously discussed, any determination reflective of a finding of misconduct or agreement
concerning termination between your former spouse and the agency should, in my opinion, be
disclosed.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Allen D. Buyck