November 1, 1993



Ms. Rochelle J. Auslander
Anderson, Banks, Curran & Donoghue
P.O. Box 240
Mount Kisco, NY 10549-0240

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. Auslander:

As you are aware, I have received your letter of September 21
and the materials attached to it.

You referred to "Findings and Recommendations" issued pursuant
to §3020-a of the Education Law in the Matter of Red Hook Central
School District v. Nagel. That document was prepared "in the
format of an arbitration award stating the charges, summarizing the
testimony with reference to documentary evidence, stating the
argument, discussing the evidence and stating the determination."
Further, according to your letter:

"[T]he majority found that a guidance teacher
had engaged in misconduct and conduct
unbecoming a teacher. It was argued by
Complainant that such behavior constituted
sexual harassment in violation of federal and
state laws and in which [sic] interfered with
the operation of the guidance office in which
he and two other individuals worked. The
teacher's defense was in large part to give
testimony that his alleged victim was not the
object of sexual harassment, but to the
contrary, a victim of sexual harassment. In
developing his case the teacher made offensive
statements about what he claimed was the
victim's sexuality which are referred to on
pages 25-27. While these statements made by
the teacher were not credited as truthful by
the majority of the panel (Pages 30-31) they
are considered offensive to the
witness...[and] to others whose names are
stated in those pages."

Your question is whether these references can be "removed from
the document" prior to public disclosure.

In this regard, I offer the following comments.

First, 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.

Second, from my perspective, the question is whether
disclosure of the portion of the record at issue would constitute
"an unwarranted invasion of personal privacy" in accordance with
§87(2)(b) of the Freedom of Information Law. Although the standard
concerning privacy is flexible and may be subject to conflicting
interpretations, the courts have provided substantial direction
regarding the privacy of public employees. 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. Further, 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); 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 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].

Several of the decisions cited above, for example, Farrell,
Sinicropi, Geneva Printing, Scaccia and Powhida, dealt with
situations in which determinations indicating the imposition of
some sort of disciplinary action pertaining to particular public
employees were found to be available. However, when allegations or
charges of misconduct have not yet been determined or did not
result in disciplinary action, the records relating to such
allegations may, in my view, be withheld, for disclosure would
result in an unwarranted invasion of personal privacy [see e.g.,
Herald Company v. School District of City of Syracuse, 430 NYS 2d
460 (1980)].

In this instance, the person whose privacy is at issue, the
victim, was not the subject of the charges in the proceeding.
Further, she was the subject of allegations that were not proven
and which were found by a majority of the panel to be lacking
credibility. Since there is neither any indication nor any finding
that the claims made in the passages in question are anything more
than unsubstantiated allegations, it is my view that disclosure of
those portions of the report would constitute an unwarranted
invasion of personal privacy and, therefore, may be withheld from
the public.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director