April 25, 2007
FOIL AO 16543
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
I have received your letter and hope that you will accept my apologies for the delay in response.
You referred to a situation in which a member of the Newfane Board of Education resigned and asked that those interested in filling the vacancy to submit their names. Your request for the names of those seeking to become a member of the Board was denied on the ground that disclosure would result in “an unwarranted invasion of personal privacy.” You have sought a “ruling” on the matter.
In this regard, the Committee on Open Government is authorized to offer advice and opinions concerning the Freedom of Information Law. Neither the Committee nor its staff is empowered to issue a binding determination. That being so, the following remarks should be viewed as an advisory opinion.
In short, it has consistently been advised that the names of those who seek to fill a vacancy in what would normally be an elective office must be disclosed to comply with the Freedom of Information Law.
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 (j) of the Law.
In typical circumstances, a person seeking to fill an elective position attempts to make his or her name known in order to attract the interest and support of voters. To suggest that names of those seeking to fill the same position that has become vacant and which may be filled by means of an appointment made by an elective body would in my view be an anomaly. I am not suggesting that personal details of individuals' lives must be disclosed. Nevertheless, in my opinion, disclosure of the names of candidates for a vacant elective position could not be characterized as “an unwarranted invasion of personal privacy” [see Freedom of Information Law, §87(2)(b)].
Further, although §89(7) of the Freedom of Information Law states in part that nothing in that statute requires the disclosure of the name "of an applicant for appointment to public employment", an applicant for a position on a board of education would not be a prospective employee seeking employment.
In a judicial decision dealt in part with a discussion in executive session concerning those under consideration to fill a vacant elective position on a public body, it was held that an executive session could not properly have been held. The court stated that:
"...respondents' reliance on the portion of Section 105(1)(f) which states that a Board in executive session may discuss the 'appointment...of a particular person...' is misplaced. In this Court's opinion, given the liberality with which the law's requirements of openness are to be interpreted (Holden v. Board of Trustees of Cornell Univ., 80 AD2d 378) and given the obvious importance of protecting the voter's franchise this section should be interpreted as applying only to employees of the municipality and not to appointments to fill the unexpired terms of elected officials. Certainly, the matter of replacing elected officials, should be subject to public input and scrutiny" (Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994).
Based on the foregoing, it is clear in my view the names of candidates who seek to fill vacant elective positions must be disclosed.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education