May 18, 1993



Ms. Elizabeth Lynch
2160 Helderberg Avenue
Schenectady, N.Y. 12306

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 Ms. Lynch:

I have received your letter of May 5 in which you requested an
advisory opinion concerning the Freedom of Information Law.

You wrote that "[i]n the Town of Rotterdam, there is the
question of how many of its employees are receiving a family plan
health insurance coverage at public expense who are also covered by
a spouse's family health insurance plan, also at public expense."
Further, the problem that you have encountered with respect to
Schenectady County and the Mohonasen School District involves the
inability "to secure names of their employees who are receiving
health insurance, so that comparisons can be made as to how many,
and who are those receiving double family coverage at public
expense." One of the items attached to your letter includes a
denial of a request to Schenectady County for "the names of persons
currently covered under the CSEA contract."

In this regard, I offer the following comments.

First, the Freedom of Information Law, in brief, 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.

It is noted that there is nothing in the Freedom of
Information Law that deals specifically with personnel records or
personnel files. Further, the nature and content of so-called
personnel files may differ from one agency to another, and from one
employee to another. In any case, neither the characterization of
documents as "personnel records" nor their placement in personnel
files would necessarily render those documents "confidential" or
deniable under the Freedom of Information Law (see Steinmetz v.
Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ,
Oct. 30, 1980). On the contrary, the contents of those documents
serve as the relevant factors in determining the extent to which
they are available or deniable under the Freedom of Information

The provision in the Freedom of Information Law of most
significance concerning the information in question is, in my view,
§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
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 a their 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); 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, supra; 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].

It is noted that in Matter of Wool, the applicant requested a
list of employees of a town "whose salaries were subject to
deduction for union membership dues payable to Civil Service
Employees Association...". In determining the issue, the Court
held that:

"...the Legislature has established a scale to
be used by a governmental body subject to the
'Freedom of Information Law' and to be
utilized as well by the Court in reviewing the
granting or denial of access to records of
each governmental body. At one extreme lies
records which are 'relevant or essential to
the ordinary work of the agency or
municipality' and in such event, regardless of
their personal nature or contents, must be
disclosed in toto. At the other extremity are
those records which are not 'relevant or
essential' - which contain personal matters
wherein the right of the public to know must
be delicately balanced against the right of
the individual to privacy and confidentiality.

"The facts before this Court clearly are
weighted in favor of individual rights.
Membership or non-membership of a municipal
employee in the CSEA is hardly necessary or
essential to the ordinary work of a
municipality. 'Public employees have the
right to form, join and participate in, or to
refrain from forming, joining or participating
in any employee organization of their
choosing.' Membership in the CSEA has no
relevance to an employee's on-the-job
performance or to the functioning of his or
her employer."

Consequently, it was held that portions of records indicating
membership in a union could be withheld as an unwarranted invasion
of personal privacy. From my perspective, based on the Wool
decision and the judicial interpretation of the Freedom of
Information Law regarding the privacy of public employees, it is
likely that records indicating the names of employees, coupled with
information indicating whether they are covered by a health
insurance plan, the nature of their coverage (i.e., individual or
family coverage), or whether a spouse is also a public employee
covered by an insurance plan, could be withheld as an unwarranted
invasion of personal privacy. In short, whether a public employee
is covered by such a plan or has a spouse who is also covered have
no relevance to the performance of those persons' official duties.

Second, if an agency has developed statistics or tabulations
containing the information in which you are interested, without
names, or from which identifying details could be details, I
believe that those records, would be available. In the
alternative, while I am unfamiliar with the manner in which the
records in which you are interested are maintained, it is possible
that you might be able to obtain copies of records, following the
deletion of identifying details, in order that you could prepare
statistics or figures useful to you.

Lastly, even when an agency may properly withhold records or
portions of records because disclosure would result in an
unwarranted invasion of personal privacy, it would not be precluded
from releasing the records. While an agency may withhold records
in certain circumstances, it is not obliged to do so, for the
Freedom of Information Law is permissive. The Court of Appeals has
held that the exceptions to rights of access are permissive, rather
than mandatory, stating that:

"while an agency is permitted to restrict
access to those records falling within the
statutory exemptions, the language of the
exemption provision contains permissible
rather than mandatory language, and it is
within the agency's discretion to disclose
such records, with or without identifying
details, if it so chooses" [Capital Newspapers
v. Burns, 67 NY 2d 562, 567 (1986)].

Therefore, although an agency may in appropriate circumstances
withhold records, I do not believe that it is obliged to do so.

I hope that the foregoing serves to enhance your understanding
of the Freedom of Information Law and that I have been of



Robert J. Freeman
Executive Director


cc: Joseph Parillo, Jr. Clerk and Records Access Officer
Frederick A. Betschen, Superintendent
James A. Constantino, Supervisor