April 14, 1997

Mr. Guy W. Midkiff
20 River Road - Apt. 7E
Roosevelt Island, NY 10044

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based upon the information presented in your correspondence.

Dear Mr. Midkiff:

I have received your letter of March 31, as well as the correspondence attached to it. You referred to "10 separate attempts to gain access to records of the Roosevelt Island Operating Committee (RIOC). On behalf of the Roosevelt Island Residents' Association, you have asked: "Where does our organization go from here."

In this regard, when records are requested and denied, and when an appeal of the denial is affirmed, an applicant for records may challenge the appeal's denial by initiating a proceeding under Article 78 of the Civil Practice Law and Rules. I note that the burden of proof, when such a proceeding involves a denial of access to records under the Freedom of Information Law, is on the agency [see Freedom of Information Law, S89 (4) (b)]. In my view, however, litigation should be a last resort. One of the functions of the Committee on Open Government involves the preparation of advisory opinions. While the opinions are not binding, it is my hope that they serve to enhance compliance with and understanding of the Freedom of Information Law. With that as our goal, I offer the following comments.

One of the issues involves the promptness of responses to requests and limitations on the amount of time that has been permitted to review records. In several instances, you were given a half hour or less to inspect records.

By way of background, S89 (4) (b) (iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural implementation of the Law (see 21 NYCRR Part 1401). In turn, S89 (1) requires agencies to adopt rules and regulations consistent with the Law and the Committee's regulations.

Section 1401.2 of the regulations, provides in relevant part that:

"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with regulations herein, and shall designate one or more persons as records access officer by name or specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more record access officers shall not be construed to prohibit officials who have inn the past been authorized to make records or information available to the public from continuing to do so."

As such, the records access officer has the duty of þcoordinating an agency's response to requests. That person's absence cannot, in my view, be cited as a justification for delaying disclosure or limiting the time of inspection of records.

Further, S1401.4 of the regulations, entitled "Hours for public inspection", states that:

"(a) Each agency shall accept requests for public access to records and produce records during all hours they are regularly open for business.

Relevant to the matter and the foregoing is a decision rendered by the Appellate Division. Among the issues was the validity of a limitation regarding the time permitted to inspect records established by a village pursuant to regulation. The Court held that the village was required to enable the public to inspect records during its regular business hours, stating that:

"...to the extent that Regulation 6 has been interpreted as permitting the Village Clerk to limit the hours during which public documents can be inspected to a period of time less that the business hours of the Clerk's office, it is violate of the Freedom of Information Lawþ [Murtha v. Leonard, 620 NYS 2d 101 (1994), 210 AD 2d 411].

Therefore, if it has been determined that records are accessible, and if they have been retrieved, I believe that the RIOC would be required to permit you or others to inspect the records during þregular business hours.

While the RIOC has been determined to disclose some of the records sought, it has denied access to others. Those others, as I understand the matter, involve certain employees of the RIOC and their job descriptions, educational background, previous work experience and qualifications to hold their current positions. The remaining records withheld consist of commercial leases and records indicating the þpayment history starting in 1996, þof all Roosevelt Island commercial leases. RIOC's General Counsel wrote that the records in question may be withheld as an þunwarranted invasion of personal privacy, because they are þcontained in intra-agency memorandums, and because certain þitems are disputed and currently in negotiations therefore they do not represent final agency determinations.

In this regard, I offer the following comments:

As a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in S87 (2) (c), which permits an agency to withhold records to the extent that disclosure would þimpair present or imminent contract awards or collective bargaining negotiations. While future leasing of certain properties might indeed be the subjects of current negotiations, records of payments already made, or perhaps missed, involve the manner in which an existing agreement, contract or lease is being carried out. Those records pertain to agreements previously reached, not to contracts or leases yet to be signed. Therefore, I do not believe that S87 (2) could be justifiably asserted to withhold the kinds of records at issue.

With respect to a denial as it refers to þintra-agency memorandums, relevant is a recent decision by the Court of Appeals, the State's highest court, concerning a claim by the New York City Police Department that certain records could be withheld in their entirety based on their characterization as intra-agency materials.

The provision at issue, S87 (2) (g) of the Freedom of Information Law, enables an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

• i.    statistical or facial tabulations or date;
  
• 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.

In its analysis of the matter, the decision stated that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is þfactual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing public Officers Law S87 (2) (g) (iii)]. However, under a plain reading of S87 (2) (g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain þstatistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)þ "...although the term þfactual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is þto protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' [Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 (quoting Matter of Sea Crest Constr. v. Studing, 82 AD2d 546, 549)]. Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of þstatistical or factual tabulations or data' [Public Officers Law 87 (2) (g) (i)]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182). [Gould, Scott and DeFelice v. New York City Police Department, 89 NY2d 267, 276-277 (1996); emphasis added by the Court].

Records of payments, although perhaps contained in intra- agency materials, would consist of factual information available under S87 (2) (g) (i).

The personnel records that you requested might also consist of intra-agency materials. However a job description would, in my view, be accessible, for it would represent factual information indicating the duties inherent in a particular position that must be disclosed under the same provision. Alternatively, a job description would represent the policy of an agency concerning the duties of those who hold a position a position and would, therefore, by available under S87 (2) (g) (iii).

With impact to the remaining personnel records, the provision in the Freedom of Information Law of most significance is, in my view, S87 (2) (b). That provision permits an agency to withhold records to the extent that disclosure would constitute þan unwarranted invasion 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. Further, 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 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 Munroe, 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 236 (1989); Spaccia 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).

In a discussion of the intent of the Freedom of Information Law by the state's highest court in a case cited earlier, the Court of Appeals in Capital Newspapers, supra, found that the statute:

"affords all citizens the means to obtain information concerning the day-to-day functioning of state and local government thus providing the electorate with sufficient information to þmake intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of the government officers (67 NY 2d at 566).

Based upon the foregoing, with respect to the qualifications of employees, if, for example, an individual must have certain types of experience, educational accomplishments, licenses or certifications as a condition precedent to serving in a particular position, those aspects of a resume or application would in view be relevant to the performance of the official duties of not only the individual to whom the record pertains, but also the appointing agency or officers. In a different context, when a civil service examination is given, those who pass are identified in þeligible lists which have long been available to the public. By reviewing an eligible list, the public can determine whether persons employed by government have passed the appropriate examinations and met whatever qualifications that might serve as conditions precedent to employment. In my opinion, to the extent that the records sought contain information pertaining to the requirements that must have been met to hold a position, they should be disclosed. Again, I believe that disclosure of those aspects of documents would result in a permissible rather that an unwarranted invasion of personal privacy. Disclosure represents the only means by which the public can be aware of whether the incumbent of the position has met the requisite criteria for serving in that position.

Although some aspects of one's employment history may be withheld, the fact of a person's public employment is a matter of public record, for records identifying public employees, their titles and salaries must be prepared and made available under the Freedom of Information Law [see S87 (3) (b)]. However, information included in a document that is irrelevant to criteria required for holding the position, such as home address, social security number and the like, could in my opinion be deleted prior to disclosure of the remainder of the record to protect against an unwarranted invasion of personal privacy.

It is also noted that it has been held that the educational background of a public employee must be disclosed [Ruberti, Girvin & Ferlazzo v. Division of State police, 641 NYS 2d 411, 415, ___ AD2d ___ (1996)].

As suggested earlier, in an effort to encourage compliance with and foster knowledge of the Freedom of Information Law and its interpretation, copies of this opinion will be forwarded to officials of the RIOC.

I hope that I have been of assistance.

Sincerely,
[signed]
Robert J. Freeman
Executive Director