March 1, 1994

 

 

Mr. Charles J. Tiano
116 Chayo Mountain Road
Woodstock, NY 12498

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. Tiano:

I have received your letter of January 25. Please accept my
apologies for the delay in response.

You have asked whether a town board or other governmental
entity "has the authority to withhold from the public the names of
persons who have filed an application to fill a vacancy on the Town
Board." You added that there is a vacancy on the Woodstock Town
Board and that it "is known through reliable sources that the board
has interviewed, in executive session, eight (8) aspirants to fill
the vacancy."

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 §87(2)(a) through (i) of the Law.

In my view, a record or records identifying persons seeking to
fill a vacancy in an elective office must be disclosed. Section
87(2)(b) of the Freedom of Information Law enables an agency to
withhold "an unwarranted invasion of personal privacy". However,
in more typical circumstances, a person seeking to fill an elective
position attempts to make his or her name known in order to attract
the interest of voters. To suggest that names of those attempting
to fill the same position that has become vacant and which may be
filled by means of an appointment made by an elective body would in
my view be an anomaly. I am not suggesting that personal details
of individuals' lives must be disclosed. Nevertheless, in my
opinion, disclosure of the names of candidates for a vacant
elective position could not be characterized as an unwarranted
invasion of personal privacy.

Further, although §89(7) of the Freedom of Information Law
states in part that nothing in that statute requires the disclosure
of the name "of an applicant for appointment to public employment",
an applicant for a position on a town board would not be a
prospective employee seeking employment.

Second, a recent judicial decision dealt in part with a
discussion in executive session concerning those under
consideration to fill a vacant elective position on a public body.
In holding that an executive session could not properly have been
held, the court stated that:

"...respondents' reliance on the portion of
Section 105(1)(f) which states that a Board in
executive session may discuss the
'appointment...of a particular person...' is
misplaced. In this Court's opinion, given the
liberality with which the law's requirements
of openness are to be interpreted (Holden v.
Board of Trustees of Cornell Univ., 80 AD2d
378) and given the obvious importance of
protecting the voter's franchise this section
should be interpreted as applying only to
employees of the municipality and not to
appointments to fill the unexpired terms of
elected officials. Certainly, the matter of
replacing elected officials, should be subject
to public input and scrutiny" (Gordon v.
Village of Monticello, Supreme Court, Sullivan
County, January 7, 1994).

Based on the foregoing, it is clear in my view the names of
candidates who seek to fill vacant elective positions must be
disclosed.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Woodstock Town Board