August 8, 1994



Mr. Seth Agulnick
The Post-Star
PO Box 2157
Glens Falls, NY 12810-2157

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Agulnick:

I have received your letter of July 26 and the correspondence attached to it.

You wrote that you "have reason to believe" that a teacher employed by the Johnsburg Central School District "was found guilty by a hearing panel of at least one charge brought against her by the school board." Although similar records had in the past been disclosed, you were informed in response to a request made to the State Education Department that no records would be disclosed due to the pendency of an appeal before the Commissioner. You were also told that "[u]ntil the Commissioner rules on the matter it is not a final agency determination."

You have asked whether "the state's response was an appropriate interpretation of the Freedom of Information Law." In this regard, I offer the following comments.

First, based on the information that you provided, it appears that a proceeding was commenced under §3020-a of the Education Law, the statute dealing with disciplinary charges initiated against a tenured person, most often a teacher. As I understand that statute, a hearing is conducted before a three member panel chosen from a list of hearing panel members that is maintained by the Commissioner of Education. Within five days of the conclusion of a hearing held under §3020-a, subdivisions (4) and (5) of that statute provide in relevant part that:

"...the commissioner of education shall forward a report of the hearing, including the findings and recommendations of the hearing panel and their recommendations as to penalty or punishment if one is warranted, to the employee and to the clerk or secretary of the employing board. Within thirty days of receipt of such hearing report the employing board shall implement the recommendations thereof, which shall include the penalty or punishment, if any, of a reprimand, a fine, suspension for a fixed time without pay or dismissal. If the employee is acquitted he shall be restored to his position with full pay for any period of suspension and the charges expunged from this record...

Either the employee or the employing board may review the findings of the hearing panel either by appeal to the commissioner of education as provided for by article seven of this charter, or by a special proceeding under article seventy-eight of the civil practice law and rules. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding."

In view of the foregoing, an appeal by an employee or employing board is optional; it is not a required step in the process. Moreover, the last sentence quoted above is clear, specifying that the hearing panel's determination, which consists of findings and recommendations, is considered to be the final determination. Consequently, the basis for withholding offered in response to your request is, in my opinion, inappropriate.

With regard to what might be considered "final" for purposes of the Freedom of Information Law, in the case of Miracle Mile Associates v. Yudelson, [68 AD 2d 176 (1979)], the Court cited opinions of the Committee and found that usage of an ordinary dictionary definition of "final" would "produce an unreasonable result by denying access to all opinions, orders and determinations except those made by the highest agency" (id. at 182). The Court adopted the legal definition of "final" which "permits the each stage of an often multi-level administrative process" (id.).

Second, in terms of rights of access, 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. I believe that two of the grounds for denial are relevant to an analysis of rights of access to the record sought.

Section 87(2)(b) states that an agency may withhold records insofar as disclosure would constitute "unwarranted invasion of personal privacy". 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, and 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 or unsubstantiated charges 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)]. Therefore, to the extent that charges were dismissed or were found to be without merit, I believe that those charges and records relating to them may be withheld.

Also relevant is §87(2)(g), which states that an agency may 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, unless a different ground for denial could appropriately be asserted. 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.

For reasons discussed earlier, I believe that the hearing panel's determination consisting of the findings and recommendations is a final determination. To the extent that the panel sustained a charge or charges against the teacher, its determination must, in my opinion, be disclosed.

Assuming that the school district that employs the teacher maintains duplicates of the records, I believe that they would be equally available from the district.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Gene G. Snay