FOIL-AO-17195

                                                                                                May 29, 2008

 

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

            I have received your letter in which you sought an advisory opinion concerning a request made under the Freedom of Information Law.

            You wrote that you represent the Oceanside Fire District, that nine firefighters involved in an incident were the subject of charges, and that all were found “guilty of some but not all of the charges” by a hearing board.  The board prepared a recommendation based on its findings, which was adopted by the District.  Following the adoption of the recommendation, you indicated that the District received:

“...a request under the Freedom of Information Law for ‘copies of the decisions or determinations, by the disciplinary board, relating to the 9 firefighters suspended after a brawl at a block party in August.  Those should include name, rank and company affiliation for each of those members as well as details of the specific charges leveled against them and those for which they were found guilty.’

“The Oceanside Fire District initially provided a copy of a one-page document, which was the decision of the Commissioners of the Oceanside Fire District to accept the determination of the hearing board.  This document lists the names of each firefighter involved, the finding of ‘guilty,’ and the term of each firefighter’s suspension.  The District denied any other disclosure as exempt under the provisions of Public Officers Law Article 6 §87(2), including but not limited to §87(2)(b) and §87(2)(g).”

            You have asked whether “the hearing board’s recommendation, as well as the document containing the charges, should be released.”  In this regard, I offer the following comments.

            First, the Freedom of Information Law is applicable to agency records, and §86(3) defines the term “agency” to mean:

                                    "...any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

A fire district is a kind of public corporation [see General Construction Law, §66; Town Law, §174(6)] and, therefore, is an “agency” required to comply with the Freedom of Information Law.  Further, the Court of Appeals determined years ago that volunteer fire companies, despite their status as not-for-profit corporations”, constitute “agencies” as well [Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575 (1980).  That being so, I believe that volunteer firemen should generally be treated in a manner analogous to public employees for the purpose of applying the Freedom of Information Law.

            Second, 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 my view, both of the grounds for denial that you cited are pertinent to an analysis of the matter.

            Section 87(2)(g) permits an agency, such as a fire district, to withhold records that:

"are inter-agency or intra-agency materials which are not:

i.  statistical or factual tabulations or data;

ii.  instructions to staff that affect the public;

iii.  final agency policy or determinations; or

iv.  external audits, including but not limited to audits performed by the comptroller and the federal government..."

            It is noted that the language quoted above contains what in effect is a double negative.  While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted.  Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

            Although a hearing board’s recommendation ordinarily may be withheld, in this instance, the recommendation was apparently adopted in full by the District.  Because that is so, the recommendation, in my view, has become the District’s final determination.  In a case decided by Supreme Court, Nassau County, that involved similar principles, a recommendation concerning employee misconduct was adopted by the superintendent of the school district as his decision and, therefore, was found to constitute a final agency determination accessible under §87(2)(g)(iii) (see Miller v. Hewlett-Woodmere Union Free School District #14, NYLJ, May 16, 1990).

            In short, because the recommendation became the District’s determination, I believe that it must be disclosed, except to the extent that a different exception might properly be asserted.  The exception of significance is §87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.”  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 they 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 one'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, in my view, 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)].  Further, to the extent that charges are dismissed or allegations are found to be without merit, I believe that they may be withheld based on considerations of privacy.

            With respect to your specific questions, it is my opinion that the hearing board’s recommendation is accessible to the public, except to the extent that it includes charges that were dismissed or that could not be substantiated, or information relating to those charges.  The other document to which you referred that “contains the charges” must in my view be disclosed insofar as it details charges that were sustained and resulted in findings of guilt or misconduct.  And again, in my opinion, those portions of the document consisting of charges that were dismissed may be withheld.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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