March 9, 1998

Mr. Jerry Brixner
14 Hartom Road
Rochester, NY 14624

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. Brixner:

I have received your letter of February 13 concerning your request to
the Town of Chili for the resume of an employee recently hired by the Town,
as well as a variety of information pertaining to his functions and role in
relation to other employees. You were informed by the Town Clerk that the
resume would be withheld pursuant to the "Privacy Act."

In this regard, I offer the following comments.

First, the Personal Privacy Protection Law is applicable only to state
agencies. For purposes of that statute, §92(1) defines the term "agency" to

"any state board, bureau, committee,
commission, council, department, public
authority, public benefit corporation, division,
office or any other governmental entity
performing a governmental or proprietary
function for the state of New York, except the
judiciary or the state legislature or any unit of
local government and shall not include offices
of district attorneys."

Based on the foregoing, the Personal Privacy Protection Law excludes from
its coverage "any unit of local government", such as a town. Consequently,
the Personal Privacy Protection Law would not be applicable or serve as a
barrier to disclosure of records maintained by a unit of local government [see
Seelig v. Sielaff, 607 NYS 2d 300, 201 AD 2d 298 (1994)]. This is not to
suggest that records or portions of records cannot be withheld, but rather that
the Personal Privacy Protection Law simply does not apply.

Second, it is emphasized that the Freedom of Information Law
pertains to existing records, and that §89(3) of that statute provides in part
that an agency is not required to create a record in response to a request. If,
for example, there is no "organizational chart listing the names, titles and
responsibilities of the individuals who will report to" the new employee, the
Town would not be obliged to prepare a record containing that information
on your behalf.

Third, as you are likely aware, 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 to the matter 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 withheld, 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 resumes, including information detailing one's public
employment must be disclosed. The Committee's opinion stated that:

"If, for example, an individual must have
certain types of experience, educational
accomplishments or certifications as a
condition precedent to serving in [a] particular
position, those aspects of a resume or
application would in my view be relevant to
the performance of the official duties of not
only the individual to whom the record
pertains, but also the appointing agency or
officers ... to the extent that records sought
contain information pertaining to the
requirements that must have been met to hold
the position, they should be disclosed, for I
believe that disclosure of those aspects of
documents would result in a permissible rather
than an unwarranted invasion [of] personal
privacy. Disclosure represents the only means
by which the public can be aware of whether
the incumbent of the position has met the
requisite criteria for serving in that position.

"The Opinion further 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)]."

In short, it is likely that some aspects of the resume must be disclosed,
while others could be withheld to protect personal privacy.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Carol O'Connor, Town Clerk