From: Freeman, Robert (DOS)
Sent: Monday, February 25, 2013 8:53 AM
Subject: RE: Mr. ROBERT FREEMAN, Esq [EXECUTIVE DIRECTOR, COMMITTEE on OPEN GOVERNMENT]
Having reviewed this and copies of the other communications sent to this office regarding the same subject, there was no misunderstanding relative to my remarks.
FOIL authorizes government agencies to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” Numerous judicial decisions rendered over the course of years indicate, first, that public employees have less privacy than others, for they are required to be more accountable than others; and second, it has been held in a variety of contexts that those items that pertain to a public employee’s duties are accessible to the public, for disclosure in those instances would result in a permissible, not an unwarranted invasion of privacy.
Many decisions indicate that records reflective of findings or admissions of misconduct are available under FOIL. Similarly, in situations in which a disciplinary proceeding is anticipated or has been initiated, and rather than completing a lengthy and expensive process, settlement agreements are often reached. Those agreements have also been found to be available to the public.
My understanding is that the subject of the comments admitted to having engaged in misconduct. That being so, disclosure, based on judicial decisions, would not have constituted an unwarranted invasion of
Since you printed the Personal Privacy Protection Law and suggested that disclosure might have resulted in a failure to comply with that statute, I offer the following brief remarks. Section 96(1) of that statute generally precludes a state agency from disclosing personal information, except under circumstances specified in that provision. One of the exceptions, paragraph (c), refers to the disclosure of personal information that is accessible under FOIL. That was so this instance. Consequently, I do not believe that the disclosure was inconsistent with the Personal Privacy Protection Law.
Note that several advisory opinions available on our website offer guidance consistent with the preceding remarks. See e.g., opinions relating to key phrases “Disciplinary Action or Proceeding”, “Privacy – Public Employee” and “Settlement Agreement.”
I hope that the foregoing serves to clarify your understanding of the matter.
Camille S. Jobin-Davis