FOIL AO 19771
May 7, 2020
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, except as otherwise indicated.
I am writing in response to your request for an advisory opinion regarding the obligations of the City of Watertown (the City) under the Freedom of Information Law (FOIL) in connection with requests for records relating to an allegation that there had been a hostile work environment created by the former City Manager.
On February 13, 2020, a reporter for a local news affiliate submitted a FOIL request for “all or part of the recent report done for the city (sic) of Watertown by HR Consultants pertaining to the complaint filed against” the former City Manager. You advise that after reviewing the consultant’s investigation report in executive session, “the Council did not find that there had been a hostile work environment created by the City Manager, as alleged.” The City’s records access offer denied access to the report on the ground that disclosure would constitute an unwarranted invasion of personal privacy. The denial was upheld after an administrative appeal.
As you are aware, FOIL is based upon a presumption of access. 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 (p) of the Law. Here, the City has asserted that disclosure of the requested records would result in an unwarranted invasion of personal privacy pursuant to §§ 87(2)(b) and 89(2)(b)(iv) of FOIL.
Based on the judicial interpretation of FOIL, it is clear that public officers and employees enjoy a lesser degree of privacy than others because those individuals are required to be more accountable than others. The courts have found that, as a general rule, records that are relevant to the duties of those persons 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, 83 Misc. 2d 125, 128 (Sup. Ct. Broome Ct. 1975) (“To disclose these [written reprimands] will not result in an unwarranted invasion of personal privacy; they are ‘relevant -- to the ordinary work of the – municipality.’”).; Gannett Co. v. County of Monroe, 59 A.D.2d 309, 312 (4th Dep’t 1977), aff'd 45 N.Y. 2d 954 (1978) (“Records regarding the termination of employees and their removal from the payroll are, by their very nature, relevant and essential to the ordinary work of the county.”); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Co., 1981 (“They [records] deal with a matter of public concern, that being a public employee’s accountability for misconduct.”); Montes v. State, 94 Misc.2d 972, 977 (Ct. Cl. 1978) (“Where malfeasance of a public officer is an issue -- and the necessary confidentiality of criminal investigation will not be impaired thereby or national security threatened -- maximum freedom of information must be provided.”); Powhida v. City of Albany, 147 A.D.2d 236 (3d Dep’t 1989)(“[Police officer disciplinary] records requested were clearly of significant interest to the public.”); Scaccia v. NYS Division of State Police, 138 A.D.2d 50 (3d Dep’t 1988)(records reflecting that public employee “abused his official authority in obtaining information for petitioner's personal use fall within the privacy exemption of FOIL.”); Steinmetz v. Board of Education, East Moriches, N.Y.L.J., Oct. 30, 1980 (Disclosure of summary course completion information did not constitute an unwarranted invasion of personal privacy.), Sup. Ct. Suffolk Co., 1980; Capital Newspapers v. Burns, 67 N.Y.2d 562, 570 (1986) (agency’s argument that employee would “suffer ‘economic or personal hardship’ if the ‘Lost Time Report’ is released to the newspaper is conclusory and not supported by any facts.”)
Several of the decisions cited above, Farrell, 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 under FOIL.
However, the Committee has long opined that 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, in our view, be withheld, as disclosure would result in an unwarranted invasion of personal privacy. See, e.g., Herald Company v. School District of City of Syracuse, 104 Misc. 2d 1041 (Sup. Ct. Onondaga Co. 1980) (“The Court submits that its [the Committee on Open Government’s] analogy of private [disciplinary] hearings to executive sessions is more appropriate, as well as case law supporting non-disclosure of matters divulged in executive session.”) Further, to the extent that charges are dismissed, or allegations are found to be without merit, we have opined that records relating to those allegations may be withheld based on considerations of privacy.
Here, the applicant has asserted the exemption upon which the City relied does not apply. The applicant asserted that the release of the records requested would not constitute an “unwarranted invasion of personal privacy” described in Public Officers Law § 89(2)(b)(iv) as maintained by the records access officer. I note that in its initial denial, the City’s records access officer cited Public Officers Law § 89(2)(b)(iv); however, the language quoted in the denial was actually from § 89(2)(b)(v). It is not clear which example the City intended to cite, but § 89(2)(b)(iv) states that disclosure may be unwarranted if the information is “of a personal nature” and “when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it.” As disclosure of records reflecting unsubstantiated allegations of misconduct could likely result in economic or personal hardship to the public employee, we believe that this is a proper exemption upon which to rely.
Regardless, it is important to note that the legislature apparently did not intend that the list of unwarranted
invasions of personal privacy be exhaustive; the introductory clause in § 89(2)(b) states that an unwarranted invasion of personal privacy “includes, but shall not be limited to” the eight examples that follow. As such, those examples do not appear to be determinative of all issues that arise relating to the application of the privacy standard.
[W]here none of the [enumerated exemptions under Public Officers Law § 89(2)(b) are] applicable, a court ‘must decide whether any invasion of privacy ... is “unwarranted” by balancing the privacy interests at stake against the public interest in disclosure of the information’” (Matter of Harbatkin v. New York City Dept. of Records & Info. Servs., 19 N.Y.3d 373, 380, 948 N.Y.S.2d 220, 971 N.E.2d 350, quoting Matter of New York Times Co. v. City of N.Y. Fire Dept., 4 N.Y.3d 477, 485, 796 N.Y.S.2d 302, 829 N.E.2d 266).
Based on the foregoing, when an allegation of misconduct is still under investigation or the allegation has been found to be without merit, the privacy interest of the subject of the investigation outweighs the public interest in disclosure of the information. Similarly, when a criminal charge is dismissed in favor of the accused, the courts seal those records against disclosure for the purpose of protecting the privacy of the accused.
The applicant also asserted that “even if the exemption did apply,” as we have opined here that it does, “the proper response to the Station’s request would be to release a redacted report, not withhold the report in its entirety.” The applicant also “demanded that, at the very least, the City release the report with identifying details (but not the City’s decisions or conclusions) redacted.” We understand from the City that the City’s decision and conclusion were not contained in the consultant’s report, but instead were reported during an open meeting of the City Council on January 24, 2020. Minutes of that meeting have been made publicly available and were provided to the applicant. The applicant’s argument for disclosure of a redacted report appears to rely on the assumption that the privacy at issue is only of the individual who made the allegations. It does not appear to take into consideration that the accused may also have privacy interests and that those interests may not be adequately protected through redaction.
The public is aware that the former City Manager was the subject of the investigation. Redaction of the City Manager’s name would not be sufficient to protect his privacy interests. We understand that the remainder of the report contains the details of the allegation of misconduct. Accordingly, in our view, if the investigation report cannot be redacted sufficiently to protect the subject of the report from an unwarranted invasion of personal privacy with regard to those allegations, the report can be withheld it in its entirety.
I hope this information proves useful.
cc: Jacquelyn Schell, Ballard Spahr LLP