December 2, 1997

Mr. Dennis D. Curtin
Stafford, Trombley, Purcell Owens & Curtin, P.C.
P.O. Box 2947
Plattsburgh, NY 12901-0269

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. Curtin:

I have received your letter of October 24 in which you requested an
advisory opinion concerning the Freedom of Information Law on behalf of a
school district. Specifically, you asked whether charges initiated by the Board
of Education against a public employee, the Superintendent, "would be
subject to disclosure under the Freedom of Information Law."

From my perspective, the charges could be withheld until there is a
determination to sustain them. 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 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.
From my perspective, two of the grounds for denial are pertinent to an
analysis of the issue.

First, 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).

Second, also significant is §87(2)(b), which enables 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 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 may, according to case law, 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 (1980)].

I hope that I have been of assistance.


Robert J. Freeman
Executive Director