February 3, 1998

Mr. Robert C. McDonough
Michael G. Kessler & Associates, Ltd.
Park Avenue Atrium
237 Park Avenue, 21st Floor
New York, NY 10017

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. McDonough:

I have received your letter of January 13 in which you sought guidance
concerning a request for records of the New York City Health and Hospitals
Corporation. The records that you requested relate "to the investigation
and/or complaints against Dr. Bruce Siegel during his employ as President of
New York City's Health and Hospitals Corporation."

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, perhaps of primary significance 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 findings of misconduct or the imposition of some
sort of disciplinary action pertaining to particular public employees were held
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, 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 (1980)].

I note, too, that the identity of the person making the complaint or
allegation could also be withheld, in view of the nature of the allegation, on
the ground that disclosure would result in an unwarranted invasion of that
person's privacy.

The other provision of relevance, §87(2)(g), 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.

If complaints were made by employees of the Corporation, those
records would constitute "intra-agency materials", as would the investigative
documentation prepared by the Corporations's staff. Those records would be
accessible or deniable in accordance with the commentary in the preceding
paragraph pursuant to §87(2)(g). Further, as suggested above, even factual
information otherwise available under §87(2)(g)(i) could be withheld if
disclosure would constitute an unwarranted invasion of personal privacy
pursuant to §87(2)(b).

I hope that the foregoing serves to enhance your understanding of the
Freedom of Information Law and that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Elizabeth St. Clair, General Counsel
Patricia Lockhart, Records Access Officer