August 7, 2007
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.
As you know, I have received your letter concerning a settlement agreement between the City of Newburgh and a former employee. Please accept my apologies for the delay in response.
You attached a copy of a response to a request by the City’s Corporation Counsel, who offered a series of reasons for denying access to the settlement agreement. As I understand his comments, none of those reasons is valid, and if that is so, the agreement must be disclosed.
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.
The Corporation Counsel referred initially to §87(2)(a), which pertains to records that are “specifically exempted from disclosure by state or federal statute.” However, no reference to any statute was given. He did indicate that a “[f]ederally-approved pre-trial mediation program in the shadow of litigation, can include a provision holding all parties to a condition of confidentiality.” Nevertheless, again, there is no reference to a statute that either confers or requires or confidentiality. I note that if a federal court issued an order requiring confidentiality, it could not be advised by this office that any person should violate an order issued by a federal judge. There is no evidence, however, in his comments that any such order exists. More importantly, there are several decisions rendered under the New York Freedom of Information Law indicating that settlement agreements are accessible to the public, and that promises or agreements regarding confidentiality are irrelevant when determining public rights of access.
The courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the state’s highest court, the Court of Appeals, nearly thirty years ago:
"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].
In another decision, the Court of Appeals found that:
"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" [Capital Newspapers v. Burns,67 NY2d 562, 565-566 (1986)].
Several controversies have arisen in which agreements or settlements have included provisions requiring confidentiality. Those kinds of agreements have uniformly been struck down and found to be inconsistent with the Freedom of Information Law. In short, it has been held that a promise or assertion of confidentiality cannot be upheld, unless a statute specifically confers confidentiality. In Gannett News Service v. Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency guaranteed confidentiality to school districts participating in a statistical survey concerning drug abuse. The court determined that the promise of confidentiality could not be sustained, and that the records were available, for none of the grounds for denial appearing in the Freedom of Information Law could justifiably be asserted. In a decision rendered by the Court of Appeals, it was held that a state agency's:
"long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'record' under FOIL. The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt..." [Washington Post v. Insurance Department, 61 NY 2d 557, 565 (1984)]. Moreover, it was determined that
“Respondent’s long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature’s definition of ‘records’ under FOIL. The definition does not exclude or make any reference to information labeled as ‘confidential’ by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt (see Matter of John P. v Whalen, 54 NY2d 89, 96; Matter of Fink v Lefkowitz, 47 NY2d 567, 571-572, supra; Church of Scientology v State of New York, 61 AD2d 942, 942-943, affd 46 NY2d 906; Matter of Belth v Insurance Dept., 95 Misc 2d 18, 19-20). Nor is it relevant that the documents originated outside the government...Such a factor is not mentioned or implied in the statutory definition of records or in the statement of purpose...”
The Court also concluded that “just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption” (id., 567).
In a context involving a settlement agreement between a municipality and a public employee, in Geneva Printing Co. and Donald C. Hadley v. Village of Lyons (Supreme Court, Wayne County, March 25, 1981), a public employee charged with misconduct and in the process of an arbitration hearing engaged in a settlement agreement with a municipality. One aspect of the settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding the agreement of confidentiality, which apparently was based on an assertion that "the public interest is benefitted by maintaining harmonious relationships between government and its employees", the court found that no ground for denial could justifiably be cited to withhold the agreement. On the contrary, it was determined that:
"the citizen's right to know that public servants are held accountable when they abuse the public trust outweighs any advantage that would accrue to municipalities were they able to negotiate disciplinary matters with its employee with the power to suppress the terms of any settlement".
In so holding, the court cited a decision rendered by the Court of Appeals and stated that:
"In Board of Education v. Areman, (41 NY2d 527), the Court of Appeals in concluding that a provision in a collective bargaining agreement which bargained away the board of education' s right to inspect personnel files was unenforceable as contrary to statutes and public policy stated: 'Boards of education are but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public which they represent. (at p. 531).
A similar restriction on the power of the representatives for the Village of Lyons to compromise the public right to inspect public records operates in this instance.
The agreement to conceal the terms of this settlement is contrary to the FOIL unless there is a specific exemption from disclosure. Without one, the agreement is invalid insofar as restricting the right of the public to access."
The Corporation Counsel next referred to the ability to withhold the agreement on the basis of §87(2)(b), which authorizes an agency, such as the City, to deny access to records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” In this regard, it is clear that those who serve or who have served as 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. The courts have found that, as a general rule, records that are relevant to the performance of a public employee's 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); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].
In two relatively recent decisions rendered by the Appellate Division, the facts may have been similar to those that you presented, for they involved persons who left their employment with municipalities in accordance with the terms of agreements with those municipalities. In both instances, it was determined that the agreements were accessible under the Freedom of Information Law. One case involved an agreement concerning a separation from employment that contained a “confidentiality clause” [Village of Brockport v. Calandra 745 NYS2d 662 (2002); affirmed, 305 AD2d 1030 (2003)], and it was determined that the agreement was accessible, and that the confidentiality clause “offends public policy” and “cannot stand” (id., 668). The other dealt with a situation in which a municipality disclosed a settlement agreement with a public employee that included provisions regarding confidentiality and was sued for breach of contract as a result of the disclosure. The municipality contended that disclosure was required by the Freedom of Information Law, and the court agreed, stating that none of the exceptions to rights of access applied [Hansen v. Town of Wallkill, 270 AD2d 390 (2000)].
In short, government agencies and employees are required to more accountable than other sectors of society, and I believe that disclosure in this instance would result in a permissible, not an unwarranted invasion of personal privacy.
The remaining contention involves what the Corporation Counsel characterized as a “public interest doctrine” as a justification for denying access. From my perspective, although the public interest privilege or its equivalent might be properly asserted in other contexts, it does not exist with respect to the ability to withhold records under the Freedom of Information Law. As stated by the Court of Appeals in 1979: "[T]he common-law interest privilege cannot protect from disclosure materials which that law requires to be disclosed" [see Doolan v. BOCES, 48 NY 2d 341, 347]. In short, either records or portions thereof fall within the grounds for denial appearing in §87(2) of the Freedom of Information Law or they do not; if they do not, there would be no basis for denial, notwithstanding a claim of privilege.
In an effort to encourage a review of the denial of your request, copies of this opinion will be sent to the City Council and Corporation Counsel.
I hope that I have been of assistance.
Robert J. Freeman
cc: City Council
Geoffrey E. Chanin