May 12, 1994
Mr. Michael A. Kless
87 Payne Avenue
Buffalo, NY 14220
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.
Dear Mr. Kless:
I have received your letter concerning a Buffalo Civil Service
Commission civil service list, as well as the materials attached to
it. Please be advised that your correspondence reached this
office on April 14.
If you request a civil service list, and "all the pages that
are stapled together [are] part of that list", you asked whether a
portion of the list can be removed before the list is made
available. The correspondence indicates that portion of the
document that was removed is "a list of candidates who were not
successful in the examination".
In my opinion, based upon the following comments, the removal
of the record in question was proper.
First, §71.3 of the regulations promulgated by the State
Department of Civil Service, which is entitled "Publication of
eligible lists", states in relevant part that:
"Eligible lists may be published with the
standing of the persons named in them, but
under no circumstances shall the names of
persons who failed examinations be published
nor shall their examination papers be
exhibited or any information given about
Based upon the foregoing, an eligible list in my view identifies
those who passed an exam and, therefore, are "eligible" for
placement in a position. A record identifying those who failed an
exam would not be eligible, and that record, from my perspective,
would not be part of the eligible list.
Second, I believe that the Freedom of Information Law is
consistent with the regulations quoted earlier. In brief, 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
One of the grounds for denial indicates that an agency may
withhold record when disclosure would constitute "an unwarranted
invasion of personal privacy". In my opinion, disclosure of the
names of those who failed a civil service exam would clearly result
in an unwarranted invasion of personal privacy.
In sum, it appears that the Commission acted appropriately by
separating and withholding the portion of the documentation that
identifies those who failed a civil service exam.
I hope that the foregoing serves to clarify your understanding
of the matter.
Robert J. Freeman
cc: Sharon Comerford, Administrative Director