January 2, 2009

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.


            I have received your letter and hope that you will accept my apologies for the delay in response.

            You have requested an advisory opinion concerning rights of access to “the compiled results of ‘Student Opinion of Teaching’ (SOOT) Surveys” and similar records that are held by “various academic departments” at the State University of New York at Binghamton.  You specified that students complete the surveys, but that “[t]he tabulated results are not linked to any individual student or respondent, but contain only the averaged responses of all submissions.”  Additionally, you attached a “SOOT” survey form, and it is clear that it does not identify particular students.

            From my perspective, the surveys and the survey results are accessible pursuant to the Freedom of Information Law.   In this regard, I offer the following comments.

            First, the Freedom of Information Law applies to records of an agency, such as the State University, and §86(4) defines the term “record” expansively to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

            Based on the foregoing, surveys and survey results maintained by or for the University constitute “records” falling within the coverage of the Freedom of Information Law.

            Second, I point out that there is nothing in the Freedom of Information Law that deals specifically with personnel records or personnel files.  The nature and content of so-called personnel files may differ from one agency to another and from one employee to another.  Neither the characterization of documents as personnel records nor their placement in personnel files would necessarily render those documents confidential or deniable under the Freedom of Information Law (see Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980).  The contents of those documents are the factors used in determining the extent to which they are available or deniable under the Freedom of Information Law.

            Third, 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, two of the exceptions are relevant to an analysis of rights of access.

            Section 87(2)(b) authorizes an agency to withhold records or portions of records the disclosure of which would constitute “an unwarranted invasion of personal privacy.”  Based on the judicial interpretation of the Freedom of Information Law, it is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those individuals 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 the official duties of those persons 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 items are irrelevant to the performance of their 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, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal attorney that could indicate how that person spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social security numbers].

            In my view, the records at issue clearly relate to the duties of employees of the University.  Because that is so, I do not believe that disclosure would constitute an unwarranted invasion of their privacy.  Further, as indicated, there is nothing in the records at issue that would identify students or others.

            The other exception of significance, §87(2)(g) pertains to “inter-agency or intra-agency materials.”   The term “agency” is defined in §86(3) of the Freedom of Information Law 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."

            Therefore, inter-agency materials involve communications between or among officers or employees of two or more agencies; intra-agency materials involve communications by officers or employees within an agency.

            Students are not agency officers or employees.  That being so, the records that they complete and transmit to University staff are neither inter-agency nor intra-agency materials, and §87(2)(g) would not be applicable or pertinent.

            However, if the University has prepared “certain tabulated survey results”, those records would, in my view, constitute intra-agency materials.  Nevertheless, the provision dealing with those materials often requires disclosure, and I believe that to be so in this instance.  Specifically, §87(2)(g) authorizes an agency 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.

            The “tabulated survey results” would consist of statistical tabulations and, therefore, I believe that they must be disclosed.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director
cc: Barbara Westbrook Scarlett