FOIL-AO-16764

August 29, 2007

 

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 a variety of correspondence from you relating to your request to the New Castle Fire District, which you serve as a member of the Board of Commissioners, involving the “conduct and actions of the Fire Chief.” Based on a review the materials, I offer the following general remarks.

First, you cited the Personal Privacy Protection Law in your request. That statute pertains only to state agencies and specifically excludes local government from its coverage [see definition of “agency” for purposes of the Personal Privacy Protection Law, §92(1)]. The Freedom of Information Law, however, includes entities of state and local government within its coverage [see definition of “agency”, §86(3)].

Second, the responses to your request indicate that the item of interest may be withheld because it an “intradepartmental communication.” In my view, the characterization of a document as “intradepartmental” does not necessarily mean that it may be withheld under the Freedom of Information Law. That statute 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 (j) of the Law.

Although one of the exceptions to rights of access deals with communications between or among government officers or employees, the extent to which those communications may be withheld or, conversely, must be disclosed, is dependent on their content. Specifically, §87(2)(g) authorizes an agency, such as a fire department, 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 record at issue appears to be a final determination relating to the conduct of the Chief. If that is so, it must be disclosed, except to the extent that a different exception might apply. Pertinent is §87(2)(b), which permits an agency to withhold records or portions of records when 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 officers and employees. It is clear that those persons enjoy a lesser degree of privacy than others, for it has been found in various contexts that they 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 such person’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 NYS2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD d 309 (1977), aff'd 45 NY2d 954 (1978); Sinicropi v. County of Nassau, 76 AD2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS2d 309, 138 AD2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY2d 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 NYS2d 460 (1980)].

In sum, if indeed there is a written determination indicating misconduct or a penalty imposed in the context of the situation to which you referred, I believe that the determination would be accessible to the public under the Freedom of Information Law, with the possibility of the deletion of certain portions. While there is no judicial decision of which I am aware dealing with such a situation, it has been advised that portions of determination indicating misconduct or discipline may be withheld that refer to a medical or mental health condition. For instance, if part of a determination requires that an individual enter a program or seek treatment involving drug or alcohol abuse, I believe that portion of the record may be withheld on the ground that disclosure of so intimate a personal detail would constitute an unwarranted invasion of privacy.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Daniel A. Doran