October 17, 2003

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.


I have received your letter and the materials attached to it. You have sought advice concerning "accessibility with respect to each of the seven requested categories" of records that you sought from the New York City Department of Education.

The first category involves a "list of the names and schools or offices" of 624 teachers who received a "U-rating" during a given school year. In this regard, I note that the Freedom of Information Law pertains to existing records and that §89(3) provides in part that an agency is not required to create a record in response to a request. If the Department does not maintain a "list" that includes the items to which you referred, I do not believe that it would be required to prepare such a list on your behalf. If a list has been prepared, I believe that it would be accessible under the Freedom of Information Law for reasons to be discussed in relation to consideration of the second and third categories of your request.

In the second, you sought "for each teacher who received a U-rating, a record revealing the reasons, facts, and conditions upon which the U-rating was based." In the third, you requested "the statistical and/or factual documentation that was submitted to the Office of Appeals and Reviews in support of the U-rating pertaining to "any 5 such teachers who received a U-rating."

Assuming that there are such records, 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, it is likely that portions of the records must be disclosed, while others might properly be withheld.

Relevant is §87(2)(b), which permits an agency to withhold records when disclosure would constitute "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 based upon judicial decisions 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, with regard to records pertaining to public employees, the courts have found in a variety of contexts that 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].

The other ground for denial of significance is §87(2)(g), which authorizes an agency to deny access to 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.

It appears that all of the records falling within categories three and four of your request would constitute "inter-agency or intra-agency materials". In consideration of that provision and §87(2)(b), I believe that statistical or factual information contained within those records would be available, except to the extent that disclosure would constitute an unwarranted invasion of personal privacy. Privacy considerations might arise in relation to intimate or personal details pertaining to the subjects of the ratings, and also with respect to others, i.e., staff members, students, parents, etc.

Assuming that a rating is final, whether it is excellent or unsatisfactory, I believe that the rating with the name of the teacher, must be disclosed for it would constitute a final agency determination available under §87(2)(g)(iii). Moreover, a final rating concerning a public employee's performance is relevant to that person's official duties and therefore would not in my view result in an unwarranted invasion of personal privacy if disclosed.

The fourth category in your request involves a "professional performance review plan." If such a record exists, I believe that it would be accessible pursuant to subparagraph (ii) or (iii) of §87(2)(g).

The fifth and sixth categories respectively involve any request regarding the 624 teachers who received U-ratings by the New York Post and the records that were disclosed. In short, any such records would, in my view, be available, for none of the grounds for denial of access would apply. The same would be so in relation to the final category of the request, which pertains to a press release that might have been issued by the Department of Education.

Lastly, since you requested copies of records, I note that an agency may assess fees for copies pursuant to §87(1)(b)(iii) of the Freedom of Information Law and that it has been held that an agency may seek payment in advance of preparing copies (see e.g., Sambucci v. McGuire, Supreme Court, New York County, November 4, 1982; Van Ness v. Center for Animal Care and Control, Supreme Court, New York County, January 28, 1999).



Robert J. Freeman
Executive Director


cc: Susan W. Holtzman