March 7, 2016
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, except as otherwise indicated.
I am writing as a follow-up to recent telephone conversations with your District Chief and District Secretary regarding the application of the Freedom of Information Law (FOIL) to a record of a grievance filed with the District by the Arlington Professional Firefighters Association, Local 2393, on behalf of a named employee and all similarly situated union members.
This subject of this particular grievance was: “The actions of the Fire District, in refusing to reimburse [union member’s name redacted] 50% of the difference in costs between the PPO and the EPO health insurance plans, represents a violation of the Collective Bargaining Agreement.”
Upon request, the Committee on Open Government rendered an advisory opinion relating to the redaction of the union member’s name in response to a FOIL request in reliance on §87(2)(b) of FOIL (disclosure would constitute an unwarranted invasion of personal privacy). We advised, in part:
“If, for example, a grievance relates to an issue involving a public employee in the nature of a health or medical problem, I believe that identifying details pertaining to the employees could justifiably be withheld. On the other hand, if the grievance does not focus on a particular employee but rather deals with a practice or policy of the agency, for example, privacy would not be an issue, and the records in question would likely in my view be available in their entirety.
In our opinion, disclosure of the name of the particular firefighter who filed the grievance, when the grievance relates to a policy that affects a group of similarly situated union members, would result in a permissible rather than an unwarranted invasion of personal privacy.”
Subsequent to the Committee rendering this opinion, the District Secretary contacted our office to express concern that the opinion was inconsistent with previously rendered opinions relating to employee health insurance. The District Secretary offered the opinion that disclosure of the name of the employee who filed the grievance, in conjunction with information publically available in the union members’ contract, would allow the requestor to determine the specific health plan under which the employee is covered. The District Secretary advised that when denying access to the name of the employee, she relied on a previous advisory opinion rendered by the Committee, FOIL Advisory Opinion 7623, which states in part:
“In my opinion, whether an employee has chosen a medical insurance plan involving family coverage as opposed to individual coverage, for example, is irrelevant to the performance of that person's official duties. Consequently, I believe that records, insofar as they indicate the nature of coverage, could be withheld as an unwarranted invasion of personal privacy. Similarly, records of claims based upon medical treatment of an employee or members of the employee's family could in my opinion be withheld due to considerations of privacy.”
With the goal of clarifying this matter, I offer the following comments.
As you are aware, FOIL 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. Section 87(2)(b)of FOIL enables an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." In addition, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy. The Court of Appeals, the state's highest court, held that the intent of the exception is to permit agencies to protect against disclosure of "intimate details" of persons' lives, and that the standard should consider the reasonable person of ordinary sensibilities (Hanig v. State Department of Motor Vehicles, 79 NY 2d 106 (1992)).
Based on judicial decisions, 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 a public officer or employee 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 relating to public officers or employees 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 this instance, disclosure of the grievance in its entirety would allow the requestor to determine the type of health plan a specific employee has chosen (EPO versus PPO) and the fact that this particular employee is requesting reimbursement for 50% of the difference in cost between the two plans. It is my understanding that the requestor would also be able to determine the name of the health plan providing coverage using information obtained from the publicly available collective bargaining agreement. It is not clear, based on my conversations with the District Secretary and District Chief, whether any other personal or intimate information could be ascertained from disclosure of the grievance in its entirety.
I point out that records indicating the salaries of public employees must be disclosed. Specifically, §87(3)(b) of FOIL states that: "Each agency shall maintain...a record setting forth the name, public office address, title and salary of every officer or employee of the agency..." Similarly, records reflective of other payments, whether they pertain to overtime, or participation in work-related activities, for example, would be available, for those records in our view would be relevant to the performance of one's official duties. It is also noted that those portions of W-2 forms indicating public employees' names and gross wages have been found to be available to the public (Day v. Town Board of Town of Milton, Supreme Court, Saratoga County, April 27, 1992). In our opinion, a record of payment to or a benefit received by a public official or employee would generally be accessible to the public; disclosure would constitute a permissible, not an unwarranted invasion of personal privacy.
A disclosure indicating that a public officer or employee is covered by a health insurance plan at public expense would not, in our view, represent or reveal an intimate detail of one's life. Arguably, the record reflective of the dates of sick leave claimed by a public employee found by the courts to be available represents a more intimate or personal invasion of privacy (Capital Newspapers v. Burns, 67 NY 2d 562 (1986)). Whether disclosure of the type of plan under which an employee is covered would constitute an unwarranted invasion of personal privacy would depend on a number of factors, not all of which are readily apparent. If, for example, a disclosure of the type of coverage for a particular employee indicates whether his or her plan involves individual or dependent coverage, whether the coverage involves medical treatment routinely provided by a clinic as opposed to a primary care physician, or whether coverage is basic or includes catastrophic care, such a disclosure may potentially result in the revelation of intimate details of a person's life and an unwarranted invasion of personal privacy. If, however, disclosure would only result in the knowledge that a particular employee is covered by “Health Plan A” versus “Health Plan B,” both of which offer both individual and group coverage and offer a similar range of benefits, I believe that disclosure would constitute a permissible, rather than unwarranted, invasion of personal privacy.
Finally, it might appropriately be contended that the need to enable the public to make informed choices and provide a mechanism for exposing waste or abuse must be balanced against the possible infringement upon the privacy of a public officer or employee. The magnitude of an invasion of privacy is conjectural and must in many instances be determined subjectively and on a case by case basis. In this instance, if a court found the invasion of one's privacy to be substantial, it might be determined that the interest in protecting privacy outweighs the interest in identifying employees receiving coverage. On the other hand, it might be determined that the information sought should be disclosed in its entirety in view of the public's significant interest in knowing how public monies are being expended.
I hope that I have been of assistance.