March 5, 2014
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.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the New York Racing Association. Specifically, NYRA denied access to a “balanced score card” used to determine the eligibility of President and CEO Christopher Kay for a bonus under the terms of his contract with NYRA, and the contract between Mr. Kay and NYRA.
Initially, we note NYRA’s qualified response that it is voluntarily complying with FOIL and not an “agency” as defined by FOIL (November 5, 2013, FN 1). We disagree, and attach a copy of FOIL-AO-19003, written January 7, 2013. Based on the analysis provided therein, it remains our opinion that NYRA is an “agency” subject to FOIL so long as it remains under public control.
As indicated, and confirmed by various news reports, legislation creating NYRA’s temporary reorganization board was enacted in September of 2012, and Mr. Kay was named President and CEO in June of 2013. The Board set Mr. Kay’s salary at $300,000, with a possible $250,000 bonus should he meet certain performance criteria.
NYRA initially denied access to copies of Mr. Kay’s contract and the balanced score card based on its opinion that disclosure would constitute an unwarranted invasion of the personal privacy of Mr. Kay, and the intra-agency exception. On appeal, NYRA confirmed the denial of access, adding that disclosure would cause substantial injury to NYRA’s competitive position should the documents be released.
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 (l) of the Law.
From our perspective, contracts, bills, vouchers, receipts and similar records reflective of expenses incurred by an agency or payments made to an agency's staff or outside contractors must generally be disclosed, for none of the grounds for denial could appropriately be asserted to withhold those kinds of records. In analyzing the issue, the provision of greatest significance in some instances is §87(2)(b). That provision permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy".
While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers and employees. 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 public officers and employees are required to be more accountable than others. Further, with regard to records pertaining to public officers and employees, the courts have found that, as a general rule, records that are relevant to the performance of 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, 83 Misc.2d 125, 372 NYS2d 905 ; Gannett Co. v. County of Monroe, 59 AD2d 309, 399 NYS2d 534, aff'd 45 NY2d 954, 411 NYS2d 557 ; Sinicropi v. County of Nassau, 76 AD2d 832, 428 NYS2d 312 [2d Dept. 1980]; Geneva Printing Co. v. Village of Lyons, Supreme Court, Wayne County, March 25, 1981; Montes v. State, 406 NYS2d 664 [Court of Claims, 1978]; Powhida v. City of Albany, 147 AD2d 236, 542 NYS2d 865 [3d Dept. 1989]; Scaccia v. NYS Division of State Police, 138 AD2d 50, 530 NYS2d 309 [3d Dept. 1988]; Steinmetz v. Board of Education, East Moriches, Supreme Court, Suffolk County, NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY2d 562, 505 NYS2d 576 ).
In a discussion of the intent of the Freedom of Information Law by the state's highest court in Capital Newspapers, supra, the Court of Appeals found that the statute:
“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” (67 NY2d at 566).
In sum, we believe that a contract between an agency and an individual, like a collective bargaining agreement between a public employer and a public employee union, must be disclosed, for it is clearly relevant to the duties, terms and conditions reflective of the responsibilities of the parties.
As you may be aware, when an agency denies access to records, and the denial is challenged via the initiation of an Article 78 proceeding, the agency has the burden of proof when the proceeding involves a denial of access under the Freedom of Information Law. The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:
“To ensure maximum access to government documents, the ‘exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption” (Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106, 109; see, Public Officers Law § 89  [b]). As this Court has stated, “[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld’ (Matter of Fink v Lefkowitz, 47 NY2d 567, 571) (89 NY2d 267, 275 ).
The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:
“…to invoke one of the exemptions of section 87 (2), the agency must articulate ‘particularized and specific justification’ for not disclosing requested documents (Matter of Fink v Lefkowitz, supra, 47 NY2d, at 571). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 133; Matter of Farbman & Sons v New York City Health & Hosps. Corp., supra, 62 NY2d, at 83)” (89 NY2d at 275).
The issue here is whether NYRA can meet its burden of proof, and demonstrate that disclosure of the terms of its employment contract with Mr. Kay and related performance criteria would constitute either an unwarranted invasion of personal privacy or that it would substantially impair NYRA’s competitive position.
Case law cited by NYRA is not persuasive. Federation of New York State Rifle and Pistol Clubs, Inc. v. New York City Police Department (73 NY2d 92 ) involved access to names and addresses of holders of pistol and rifle permits, and Hopkins v. U.S. Dept. of Housing and Urban Development (929 F.2d 81[2d Cir. 1991]) is a circuit court decision interpreting federal law regarding access to the names of private sector employees whose salaries were required to be reported for purposes of ensuring employers were meeting federal prevailing wage requirements. In our opinion, Mr. Kay, having been hired by the temporary reorganization board and now therefore employed by an “agency”, is not necessarily a private sector employee.
In one of the decisions referenced by the Court of Appeals in Gould, above, the Court cited Hanig, supra, which focused on the privacy exception, holding that it pertains to items “that would ordinarily and reasonably be regarded as intimate, private information” (79 NY2d at 112), i.e., as in Hanig, the details of one’s medical or health condition. From our perspective, particularly in consideration of FOIL §87(3)(b), which requires disclosure of employee salary information, and the long-standing presumption of access to employment contracts under FOIL, it is unlikely that NYRA can demonstrate that an employment contract could be characterized as “intimate” or, therefore, whether disclosure would rise to the level of an “unwarranted” invasion of personal privacy.
The Court of Appeals has found that “speculation” concerning the potentially harmful effect of disclosure sought to be avoided via the assertion of an exception to rights of access is insufficient to justify a denial of access. In Markowitz v. Serio (11 NY3d 43 ), the Court determined that the possibility of harm that is “theoretical” is inadequate, and that an agency “cannot merely rest upon a speculative conclusion that disclosure might potentially cause harm” (11 NY3d at 50).
In its denial, NYRA further relies on an exception to access that in many instances requires disclosure of intra-agency records. In this case, where performance criteria are at issue, we believe such records should be generally available. When an agency establishes goals and objectives to be met by an employee or official, for example, we believe that a document of that nature is public, and that similar documents pertaining to other employees are equally accessible. Such records are critical to the performance of the duties of the employee in question.
Specifically, §87(2)(g) states that an agency my 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 our view be withheld.
Concerning “instructions to staff that affect the public” and “final agency policy or determinations”, which are generally available, respectively, under subparagraphs (ii) and (iii) of §87(2)(g), there is little decisional law that deals directly with those provisions. Typically, agency guidelines, procedures, staff manuals and the like provide direction to an agency’s employees regarding the means by which they must perform their duties. Some may be “internal”, in that they deal solely with the relationship between an agency and its staff. Others may provide direction in terms of the manner in which staff performs its duties in relation to or that affects the public, which would ordinarily be accessible. To be distinguished would be advice, opinions or recommendations that may be accepted or rejected. An instruction to staff, a policy or a determination, each would represent a matter that is mandatory or directory in nature that would in our view be accessible pursuant to §87(2)(g)(ii). In this instance, it appears that the content in the balanced score card represents not only an agreement between the parties that details the expectations regarding performance, but instructions to Mr. Kay in relation to those duties that might result in greater compensation. If that is so, in our opinion, §87(2)(g)(ii) would require disclosure.
Here, because the possibility of harm either to Mr. Kay’s privacy or to the agency’s competitive position is, in our opinion, remote, and due to the requirements of §87(2)(g)(ii), we believe the requested records are required to be disclosed, and should be disclosed without further delay.
Camille S. Jobin-Davis