April 14, 1998

Ms. Joanne Cunningham
Landmark Farms
Clifton Springs, NY 14432

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, unless otherwise indicated.

Dear Mrs. Cunningham:

I have received your letter of March 25, as well as materials forwarded
by the Town of Hopewell in conjunction with your appeal as required by
§89(4)(a) of the Freedom of Information Law.

You and others requested from the Town "copies of all documentation
and correspondence pertaining to the complaint, investigation and findings in
the matter of alleged criminal conduct by the former Highway Superintendent
Kenneth Jones." Because there was "no actual or proven wrongdoing", the
Town Board denied your appeal on the ground that disclosure would result
in "an unwarranted invasion of personal privacy."

From my perspective, the Town's denial of access was consistent with
law. Although we discussed the matter during a telephone conversation, you
asked that I confirm my opinion in writing. In this regard, I offer the
following comments.

As you suggested in your appeal, 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.

The provision cited by the Town, §87(2)(b), would justify, in my
opinion, a denial of access. 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)].

Your correspondence also includes reference to a request for the
Town's "subject matter list." Here I point out that, with certain exceptions,
an agency is not required to create or prepare a record to comply with the
Freedom of Information Law [see §89(3)]. One exception to that rule relates
to a list maintained by an agency. Specifically, §87(3) of the Freedom of
Information Law states in relevant part that:

"Each agency shall maintain...

c. a reasonably detailed current list by subject
matter, of all records in the possession of the
agency, whether or not available under this

The "subject matter list" required to be maintained under §87(3)(c) is not, in
my opinion, required to identify each and every record of an agency; rather I
believe that it must refer, by category and in reasonable detail, to the kinds of
records maintained by an agency. I emphasize that §87(3)(c) does not require
that an agency ascertain which among its records must be made available or
may be withheld. Again, the Law states that the subject matter list must refer,
in reasonable detail, to the kinds of records maintained by an agency, whether
or not they are available.

It has been suggested that the records retention and disposal schedules
developed by the State Archives and Records Administration at the State
Education Department may be used as a substitute for the subject matter list.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Town Board
Mary Ann Trickey, Town Clerk