June 4, 1997




Mr. Timothy G. Johnson
21-B Barclay Manor
Newburgh, NY 12550

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 Mr. Johnson:

I have received your letter of May 8, which reached this
office on May 19. You have asked that I write to Charles A.
Winters, the Records Appeals Officer for the Newburgh Enlarged City
School District, concerning a denial of your request for certain

In this regard, although this response will be sent to you, a
copy will be directed to Mr. Winters. I note that while advisory
opinions rendered by the office are not binding, it is my hope that
they are educational and persuasive.

By way of background, your son was allegedly assaulted by a
teacher employed by the District more than a year ago. The teacher
has been suspended pending the outcome of a disciplinary proceeding
brought under §3020-a of the Education Law. In addition, the
teacher was charged with assault, but you wrote that he was
acquitted. Due to his acquittal, both the president of the
teachers' union and the teacher's attorney addressed letters to the
Board of Education asking that the 3020-a proceeding be dropped.
Your request for those letters was denied because the proceeding
has not yet resulted in a determination and disclosure, therefore,
would constitute "an unwarranted invasion of personal privacy."

In more typical circumstances involving disciplinary
proceedings, I would agree with the District's position. However,
in view of the disclosures that have been made and the publicity
that has been generated, a blanket denial of access to the letters
in question appears to be inappropriate.

As a general matter, 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 Law.

One of the grounds for denial, §87(2)(b), the provision to
which District officials alluded, indicates that an agency may
withhold records to the extent that 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 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, and 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 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 [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, as well as unsubstantiated charges following a private
hearing may, in my view, 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 NYS 2d 460

Similarly, District records identifiable to your child
ordinarily must be withheld from the public. The federal Family
Educational Rights and Privacy Act ("FERPA"; 20 U.S.C. §1232g),
generally requires that "education records" identifiable to
students be kept confidential by an educational agency.

Nevertheless, the news articles forwarded with your letter
identify your son and the teacher, as well as a variety of details
relating to the incident. In usual circumstances, neither of the
names or the details of the event would be disclosed in relation to
a 3020-a proceeding. Because of these special facts and the
reality that a great deal of information pertaining to the
situation has been disclosed to the public, I believe that the
District's denial of access fails to consider the reality of the
matter and that the letters must be disclosed, at least in part.

In view of prior disclosures regarding the event, to comply
with the Freedom of Information Law, I believe that the District is
required to review the records in question to determine which
portions might, if disclosed, constitute an unwarranted invasion of
personal privacy. If, for example, a letter suggests that the
teacher has suffered enough and that charges should be dropped,
that alone would not add anything new or intimate to the
information that has already been publicly disclosed. That kind of
commentary, in my view, must be made available. On the other hand,
if, for instance, a portion of a letter indicates that the teacher
has suffered a mental breakdown, is seeing a psychiatrist, and that
his wife has left him, those kinds of details would, in my opinion,
be intimate and could be withheld. However, from my perspective,
the remainder of the record, the portions that are not intimate or
which do not essentially reiterate information that is known to the
public, must be disclosed.

I note that in a recent decision rendered by the State's
highest court, although the records sought were different from
those at issue here and the agency cited a different exception, the
court rejected the agency's blanket use of an exception and
determined that the agency was required to review the records
sought, in their entirety, to determine which portions, if any,
could justifiablity be withheld in accordance with the grounds for
denial [see Gould v. New York City Police Department, 89 NY 2d 267
(1996)]. In view of the facts of the matter, I believe that the
District is required to engage in the same kind of review.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Charles A. Winters