January 20, 2015
I have received correspondence from both of you relating to the same request made pursuant to the Freedom of Information Law (FOIL). In an appeal following disclosure of the final decision of a hearing officer with portions redacted by the Poughkeepsie City School District, Ms. Howard sought “to have All redactions with the exception of student names removed” (emphasis added by Ms. Howard). The determination involved charges initiated against a tenured person under §3020-a of the Education Law.
Prior to receipt of Ms. Howard’s correspondence, I received a letter from Ms. Sims relating to a conversation of December 5 in which she indicated that the hearing officer made “potentially adverse conclusory ‘factual’ findings about persons who were not represented by counsel during the hearing, nor given an opportunity to present a defense at the time of the hearing.” Ms. Sims letter also indicated that, based on our conversation, redactions would be made concerning “those unrepresented persons…who were not a party to this proceeding and thus not about to present a defense”, “the portions of the Charges the Respondent was acquitted of, as well as the student names and initials mentioned in the decision.”
Ms. Howard sent a copy of the record that she received which had undergone the redactions to which Ms. Sims alluded and sought an opinion concerning the propriety of the redactions. I also recently received a copy of the determination of her appeal concerning the redactions, which, according to the Superintendent, were made “[i]n accordance with guidance from the Committee on Open Government.” Because I could not know of the content of the text that had been redacted, I spoke with Megan Shedden, Ms. Sims’ associate, in an effort to learn more about the content of the redacted material, without, of course, seeing or knowing the actual language of the redactions.
In brief, Ms. Shedden indicated that the hearing officer’s determination included comments that were not sought by the Board of Education in this proceeding that could identify students and employees other than the employee who was the subject of charges and the hearing. Insofar as those comments relate to those other employees, she informed me that there were findings regarding their conduct that were not the subject of the proceeding and, therefore, are irrelevant. She added that some of the comments concerning employees who were not the subjects of the proceeding attributed blame to and found misconduct on the part of those persons, thereby representing findings that were not the subjects of the proceeding, and who were not represented during the proceeding.
Assuming the accuracy of the information provided by Ms. Shedden, I offer the following comments.
First, as a general matter, FOIL pertains to all government agency records, irrespective of their origin, use or utility, and is based on a presumption of access. FOIL requires that all agency records be made available to the public, except those records or portions of records that may properly be withheld in accordance with the exceptions to rights of access appearing in §87(2) of that statute.
Pertinent is §87(2)(a), which relates to records that “are specifically exempted from disclosure by state or federal statute.” One such statute, the federal Family Educational Rights and Privacy Act (“FERPA”; 20 USC §1232g), provides, in brief, that those portions of records maintained by an educational agency or institution, such as a school district, that might permit the identification of a minor student are generally confidential, unless a parent of the student consents to disclosure. There appears to be no disagreement that portions of the determination that could identify a student were properly redacted.
Second, I believe that charges or allegations prepared by an agency
relating to one of its employees would constitute intra-agency material that
falls within the scope of §87(2)(g). That provision permits an agency 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.
Charges, in my view, could be withheld, for they would not consist of any of the kinds of information required to be disclosed pursuant to subparagraphs (i) through (iv) of §87(2)(g). That conclusion was reached in an early decision rendered under FOIL in which the court held that charges initiated under §3020-a that were not yet determined could be withheld based on §87(2)(g) [Herald Company v. School District of the City of Syracuse, 430 NYS2d 460 (1980].
In a related vein, as you are likely aware, following the issuance of a decision by a hearing officer in a 3020-a proceeding, if charges are dismissed, subdivision (4)(b) of that statute specifies that the charges must be expunged. The intent, as I understand it, is to preclude unsubstantiated charges from being used unfairly against or in relation to a tenured teacher, and in my view, redactions of the charges and material relating to them were proper.
That suggestion leads to the remaining exception of significance. Section 87(2)(b) of FOIL authorizes an agency to withhold records insofar as 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 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, the courts have found that, as a general rule, 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
January 20, 2015
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.
Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing, Scaccia and Powhida, dealt with situations in which final determinations indicating the imposition of some sort of disciplinary action pertaining to particular public employees were found to be available. However, as suggested earlier, 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 Herald Company, supra).
It is my understanding that the redactions, other than those pertaining to students, relate to charges that were dismissed concerning the subject of the proceeding, and to employees other than the person charged relating to the conduct and actions of those persons that were not at issue in the proceeding. Those persons had no opportunity to counter allegations or defend themselves, and any suggestion or “finding” of misconduct on their part could not have been substantiated in this proceeding, for the proceeding focused solely on the conduct of the person charged. Based on those factors, I believe that the redactions regarding those persons were proper, for disclosure would result in an unwarranted invasion of their privacy.
Lastly, pursuant to §89(4)(a) of FOIL, the Superintendent sent to this office a copy of her determination of Ms. Howard’s appeal. In affirming the initial denial of the request, Dr. Williams wrote that, in accordance with guidance offered by this office, “portions of the Decision….were redacted to protect the privacy and Due Process interest of a number of individuals.” From my perspective, while I might concur with her conclusion, the determination of the appeal falls short of the requirement that it must “fully explain in writing to the person requesting the record the reasons for further denial…” In short, the rationale for the determination is, in my view, inadequate.
I hope that I have been of assistance.
Robert J. Freeman