December 4, 1998


Mr. William C. Rosen
P.O. Box 947
Monticello, NY 12701

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

Dear Mr. Rosen:

I have received your letter of October 30 and the materials attached to it. According
to your letter:

".... was the Village Manager of the Village of
Monticello for approximately 8 months until she was
discharged at a public session of the Village Board in August
1998. A document denominated ‘Notice of Claim' filed
Shiber against the Village of Monticello. It is [your]
understanding the complaint alleges sexual harassment and
was apparently also filed with the Division of Human Rights."

In response to your request for the record in question, the Village Clerk indicated that
the document is "a Verified Complaint filed with the New York State Division of Human
Rights", and she denied access "pending the Human Rights Commission's determination
whether there is probable cause for the Complaint." She added that "[d]isclosure at this time
would constitute an unwarranted invasion of personal privacy."

You have sought my opinion concerning the propriety of the denial of access. In this
regard, I offer the following comments.

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.

Pertinent to the matter is the provision to which the Clerk alluded, §87(2)(b), which
authorizes an agency to withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy." It is my understanding, based on §297(4)(a)(i)
of the Executive Law, that if there is a finding of probable cause, notice must be given to the
parties that a public hearing will be held "not less than five nor more than fifteen days" after
service of notice. Consequently, when probable cause is found, the names of the parties
become public.

Prior to that time, however, I believe that names or other personal details relating to
parties who are natural persons may properly be withheld. I point out that §89(2)(b) contains
five examples of unwarranted invasions of personal privacy, the last two of which include:

"iv. disclosure of information of a personal nature when
disclosure would result in economic or personal hardship to
the subject party and such information is not relevant to the
work of the agency requesting or maintaining it; or

v. disclosure of information of a personal nature reported in
confidence to an agency and not relevant to the ordinary work
of such agency."

In my view, what is relevant to the work of the agency is the substance of the complaint, i.e.,
whether or not the complaint has merit. The identity of the person who made the complaint
is often irrelevant to the work of the agency, and in such circumstances, I believe that
identifying details may be deleted. In the context of the work of the Division of Human
Rights, during its investigation following the receipt of a complaint, what is relevant to the
work of the agency is whether the complaint has merit. Consequently, I believe that
disclosure of the identity of a complainant prior to a finding of probable cause would
constitute an unwarranted invasion of personal privacy.

With respect to defendants, or "respondents", as they are characterized in the
Executive Law, prior to a finding of probable cause, they are the subjects of allegations that
may be found later to be meritorious or devoid of merit. Therefore, insofar as records identify
people characterized as defendants or respondents prior to a finding of probable cause, they
could, in my view, be withheld as an unwarranted invasion of personal privacy. I note that
the Division of Human Rights has asserted that premature disclosure could involve "frivolous
or scurrilous charges."

Viewing the matter from a somewhat different perspective, it has consistently been
advised that a charge or allegation identifying an individual that has not been proven may
generally be withheld. 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 judicial decisions, 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); Prisoners' Legal Services of New York v. NYS Department of Correctional
Services, 73 NY 2d 26 (1988)].

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Board of Trustees
Edith Schop
Monis Brafman, Deputy Mayor