February 1, 1993



Michael J. Skoney
86 Clinton Street
Tonawanda, N.Y. 14150

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.

Dear Mr. Skoney:

As you are aware, your letter of January 6 addressed to Comptroller Regan has been forwarded to the Committee on Open Government. The Committee is authorized to provide advice concerning the Freedom of Information Law.

According to your letter, several years ago an employee of the Tonawanda School District filed complaints with the State Division of Human Rights against officials of the District. You wrote that there were findings of probable cause, and that the Board of Education settled the claims and "paid a substantial amount of money to the claimant". You added that "[t]he School Board claims it cannot disclose the amount of public money paid to the claimant because it was 'ordered' by a State Division of Human Rights Hearing Officer to keep the terms secret", but that the terms of the settlement specifically provide "they shall be made public as required by law."

In this regard, I offer the following comments.

First, a recent judicial decision dealt with a somewhat related situation. In Paul Smith's College v. Cuomo [589 NYS 2d 106, ___Ad___(1992)], the facts involved a complaint alleging that a former employee of the College was a victim of age discrimination. Prior to a hearing before the State Division of Human Rights, the College entered into a stipulation of settlement with the complainant in order "to eliminate any negative publicity resulting from a public hearing on the allegations" (id., 106, 107). The order issued by the Commissioner of Human Rights following the stipulation provided for confidentiality, the withdrawal of charges and a discontinance of the proceeding. Nevertheless, thereafter the Division of Human Rights issued a press release describing the allegations, disclosing that the matter had been settled and indicating certain aspects of the terms of the settlement. The College then brought a proceeding against the Division concerning the disclosure, and the Court found that the disclosure was "both arbitrary and capricious and an abuse of discretion serving no function but to rob plaintiff [the College] of the benefit of its settlement bargain" (id., 107). Nevertheless, the Court found that the Division would not be prohibited from "further disclosure of the settlement stipulation pursuant to requests made under the Public Officers Law article 6"(id.), which is the Freedom of Information Law.

Second, therefore, I believe that the issue raised in your inquiry involves the extent to which the Freedom of Information Law requires that the terms of the settlement be disclosed.

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 section 87(2) (a) through (i) of the Law.

Perhaps the most relevant ground for denial is section 87(2) (b), which states that an agency may withhold records or portions thereof when disclosure would result in "an unwarranted invasion of personal privacy". In addition, section 89 (2) (b) lists five examples of unwarranted invasions of personal privacy.

Although subjective judgments must often of necessity be made when questions concerning privacy arise, the courts have provided substantial direction regarding the privacy of public employees. First, it is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others. Second, with regard to records pertaining to public employees, the courts have found that, as a general rule, records that are relevant to the performance of a public employee' s 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, 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); 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 records are irrelevant to the performance of one's 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].

In Geneva Printing, supra, a public employee charged with misconduct and in the process of an arbitration hearing engaged in a settlement agreement with a municipality. One aspect of the settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding the agreement of confidentiality, which apparently was based on an assertion that "the public interest is benefited by maintaining harmonious relationships between government and its employees", the court found that no ground for denial could justifiably be cited to withhold the agreement. On the contrary, it was determined that:

"the citizen's right to know that public servants are held accountable when they abuse the public trust outweighs any advantage that would accrue to municipalities were they able to negotiate disciplinary matters with its employee with the power to suppress the terms of any settlement".

In so holding, the court cited a decision rendered by the Court of Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d 527), the Court of Appeals in concluding that a provision in a collective bargaining agreement which bargained away the board of education' s right to inspect personnel files was unenforceable as contrary to statutes and public policy stated: 'Boards of education are but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public which they represent. (at p. 531).

A similar restriction on the power of the representatives for the Village of Lyons to compromise the public right to inspect public records operates in this instance.

The agreement to conceal the terms of this settlement is contrary to the FOIL unless there is a specific exemption from disclosure. Without one, the agreement is invalid insofar as restricting the right of the public to access."

Another more recent decision also required the disclosure of a settlement agreement between a teacher and a school district following the initiation of disciplinary proceedings under section 3020-a of the Education Law (Buffalo Evening News v. Board of Education of the Hamburg School District and Marilyn Will, Supreme Court, Erie County, June 12, 1987). Further, that decision relied heavily upon an opinion rendered by this office.

It has been held in other circumstances that a promise or assertion of confidentiality cannot be upheld, unless a statute specifically confers confidentiality. In Gannett News Service v. Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency guaranteed confidentiality to school districts participating in a statistical survey concerning drug abuse. The court determined that the promise of confidentiality could not be sustained, and that the records were available, for none of the grounds for denial appearing in the Freedom of Information Law could justifiably be asserted. In a decision rendered by the Court of Appeals, it was held that a state agency's:

"long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'record' under FOIL. The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt..." [Washington Post v. Insurance Department, 61 NY 2d 557, 565 (1984)].

Under the circumstances, particularly since the identities of those involved are known, it is my view that the terms of the settlement would result in a permissible rather than an un- warranted invasion of personal privacy, except to the extent that disclosure involves intimate personal details in the nature, for example, of unsubstantiated allegations.

Also of significance is section 87(2)(g) of the Freedom of Information Law, which permits 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. 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. A settlement agreement could likely be characterized as "intra-agency" material. Nevertheless, I believe that the record is reflective of a "final agency determination" and would be accessible on that basis [see Farrell, Geneva Printing, Sinicropi, supra], except to the extent that a different ground for denial applies.

Further, in its discussion of the intent of the Freedom of Information Law, the Court of Appeals in Capital Newspapers, supra, 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 NY 2d at 566).

In sum, I believe that the Freedom of Information Law as judicially interpreted requires, at the very least, that the settlement agreement in question be disclosed insofar as it indicates terms involving the payment of public monies.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director

cc: Records Access Officer, Tonawanda City School District