March 28, 1994




Thomas F. Wood, Town Attorney
Town of Cortlandt
153 Albany Post Road
Buchanan, NY 10511

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. Wood:

As you are aware, I have received your letter of February 16.
Please accept my apologies for the delay in response.

In your capacity as Town Attorney for the Town of Cortlandt,
you wrote that the Town recently settled a federal lawsuit brought
by a former town supervisor. During the course of the litigation,
depositions were taken of the former supervisor, the current
supervisor and the chief of police. Having received a request for
copies of the depositions, you have sought my views concerning
their disclosure.

In this regard, 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.
Without additional information concerning the nature of the
litigation or the contents of the depositions, I cannot offer
specific guidance. However, it would appear that one of the
grounds for denial would be of particular significance.

Specifically, of likely relevance is §87(2)(b), which enables
an agency to withhold records to the extent that disclosure would
constitute an "unwarranted invasion of personal privacy".
Additionally, §87(2)(b) provides a series of examples of
unwarranted invasions of personal privacy.

It would appear that the depositions related to activities of
individuals acting in their capacities as government officers or
employees. Although the standard concerning privacy is flexible
and subject to a variety of interpretations, the courts have
provided direction through their review of challenges to agencies'
denials of access. In brief, 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, it has
been held 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].

In short, there is no formula that would apply in every
instance that could be used to determine when disclosure would
constitute a permissible as opposed to an unwarranted invasion of
personal privacy. Moreover, the Committee has expressed the belief
that a formula would not be appropriate, for rational decisions
must frequently be made on the basis of attendant facts, which may
differ from one circumstance to the next.

In the context of the issues that you raised, one
consideration, for instance, would pertain to the content of papers
filed with a court in conjunction with the litigation. It is
assumed that those records would be accessible to the public. If
that is so, an initial question involves the extent to which the
depositions include material that would, in essence, be accessible
via court records.

Lastly, in a statement concerning the intent and utility of
the Freedom of Information Law, the Court of Appeals found that:

"The Freedom of Information Law expresses this
State's strong commitment to open government
and public accountability and imposes a broad
standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New
York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance
of the public's vested and inherent 'right to
know', 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"
(Capital Newspapers v. Burns, supra, 565-566).

Based on the foregoing, I believe 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 present or former public officers
or employees.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director