February 25, 1998

Ms. Heather DeCastro
School Board President
Lewiston-Porter Central School
4061 Creek Road
Youngstown, NY 14174

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 Ms. DeCastro:

I appreciate having received a copy of your determination of Ms. Anne
McBride's appeal under the Freedom of Information Law. Although several
of the items requested by Ms. McBride were made available, you affirmed the
initial denial with respect to others.

Specifically, you wrote that a particular employee's "previous positions
with the District 'both academic and extracurricular' and his educational
background are referenced only in documents that constitute [the employee's]
employment history which are exempt form disclosure pursuant to Public
Officers Law Sections 87(2)(b) and 89(2)(b)(i)." I disagree with that portion
of your determination, for the courts have held that those items must be

As you are likely aware, 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. Relevant, as you indicated, is §87(2)(b),
which states that an agency may withhold records to the extent that disclosure
would constitute "an unwarranted invasion of personal privacy."

Based on the judicial interpretation of the Freedom of Information
Law, 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 those
individuals are required to be more accountable than others. The courts have
found that, as a general rule, records that are relevant to the performance of
the official duties of a public officer or employee 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 items relating to public officers or
employees are irrelevant to the performance of their 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, dealing with membership in a union; Minerva v. Village of
Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a
check payable to a municipal attorney that could indicate how that person
spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning
disclosure of social security numbers].

With respect to the items witheld, I note that it has been held that
disclosure of a public employee's educational background would not
constitute an unwarranted invasion of personal privacy and must be disclosed
[see Ruberti, Girvin & Ferlazzo v. NYS Division of State Police, 641 NYS 2d
411, 218 AD 2d 494 (1996)].

Additionally, in a recent judicial decision, Kwasnik v. City of New
York (Supreme Court, New York County, September 26, 1997), the court
quoted from and relied upon an opinion rendered by this office and held that
those portions of records detailing one's public employment must be disclosed.
The Committee's opinion stated that:

"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 §87(3)(b)]."

Based on that advice, the court found that:

"Accordingly, to the extent that the records
sought by petitioner contain data which would
be available from the public employers under
FOIL or similar statutes, employment histories
of GP and LP are not exempt from disclosure.
While such employment histories fit within the
exemption provided under Public Officers Law
§89(2), the statute merely provides a ground
on which the agency ‘may' withhold a
document. Since this information is otherwise
subject to disclosure, and has no legitimate
claim to confidentiality, its inclusion in an
employment history on a resume or job
application does not endow it with protection
which it otherwise would not have."

I hope that the foregoing serves to enhance your understanding of the
Freedom of Information Law and its judicial interpretation, and that I have
been of assistance. If you would like to discuss the matter, please feel free to
contact me.


Robert J. Freeman
Executive Director


cc: Anne McBride