November 5, 2009




FROM:            Robert J. Freeman, Executive Director

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 wrote that you requested information “that is being held against [you] preventing [you] from being employed in [your] school district.”  You wrote that you have never been employed by that school district, but that the district superintendent has denied your request for “a substandard performance evaluation he said he received from an administrator about [your] performance.”  It is assumed that the evaluation considered your performance with a different employer. 

            You have requested assistance in obtaining that document, and in this regard, I offer the following comments.

            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.  Two of the grounds for denial are relevant to an analysis of rights of access to the records in question.

            Section 87(2)(g) enables 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.

            While the contents of performance evaluations may differ, I believe that a typical evaluation contains three components.

            One involves a description of the duties to be performed by a person holding a particular position, or perhaps a series of criteria reflective of the duties or goals to be achieved by a person holding that position.  Insofar as evaluations contain information analogous to that described, I believe that those portions would be available.  In terms of §87(2)(g), a duties description or statement of goals would be reflective of the policy of an agency regarding the performance standards inherent in a position and, therefore, in my view, would be available under §87(2)(g)(iii).  It might also be considered factual information available under §87(2)(g)(i).

            The second component involves the reviewer's subjective analysis or opinion of how well or poorly the standards or duties have been carried out or the goals have been achieved.  In my view, that aspect of an evaluation could be withheld under §87(2)(g) on the ground that it constitutes an opinion concerning performance.

            A third possible component, as in this instance, is often a final rating, i.e., "good", "excellent", "average", etc.  Any such final rating would in my opinion be available, assuming that any appeals have been exhausted, for it would constitute a final agency determination available under §87(2)(g)(iii), particularly if a monetary award is based upon a rating.

            The other exception of possible relevance, §87(2)(b), authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.”  Additionally, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy.

            While I do not believe that you can invade your own privacy, an evaluation or related records pertaining to you might identify or include reference to persons other than yourself.  The first example of an unwarranted invasion of personal privacy pertains in part to “references of applicants for employment” [§89(2)(b)(i)].  A letter of reference or similar document pertaining to you prepared by a former employer, for example, might properly be withheld on the ground that disclosure would result in an unwarranted invasion of the privacy of the author of such a record.

            I hope that the foregoing serves to clarify your understanding and that I have been of assistance.