November 4, 1996



Mr. Gene D. Mentzer
268 Pine Ridge Drive
Wappingers Falls, NY 12590

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. Mentzer:

I have received your letter of October 19. You referred to a request directed to the Wappingers Central School District for a list of teachers who are not members of a certain union. You indicated that the request was denied by the District's records access officer based on a conversation that he had with me, and you questioned why the information in question is not available under the Freedom of Information Law.

In this regard, as you are aware, 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.

From my perspective, the issue is whether disclosure of the information sought would constitute an unwarranted invasion of personal privacy pursuant to §87(2)(b) of the Freedom of Information Law. Although subjective judgments must often of necessity be made when questions concerning privacy arise, 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. With regard to records pertaining to public employees, 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); 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].

The last decision cited, Wool, dealt with a request analogous to yours. In that case, the issue involved a request for a record that identified public employees by name and salary, and the same record included a column indicating which among the employees had deductions made for payment of union dues. The court held that salary information is clearly available, but that the column involving the payment of union dues could be withheld, stating that "[m]embership in the CSEA has no relevance to an employee's on the job performance or the functioning of his or her employer." In Wool, certain employees had the option of joining a union or not doing so. Consequently, it was held that the portion of the record indicating the payment or non-payment of union membership dues constituted an unwarranted invasion of personal privacy.

I hope that the foregoing serves to enhance your understanding of the matter.



Robert J. Freeman
Executive Director


cc: Joseph DiDonato, Records Access Officer