December 27, 1996



Mr. F. William Valentino
President and Acting Chairman
NYS Energy Research and Development Authority
Corporate Plaza West
286 Washington Avenue Extension
Albany, NY 12203-6399

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. Valentino:

I have received your letter of November 21, as well as the materials attached to it. Please accept my apologies for the delay in response.

You have sought an advisory opinion concerning a request made under the Freedom of Information Law relating to records identifying employees of the New York State Energy Research and Development Authority (NYSERDA) who are or may be eligible for the early retirement incentive. The applicant for the records, Mr. Peter Henner, has contended that the information sought "is clearly relevant to the performance of duties of a public employee" and should, therefore, be disclosed. Your view, however, "is that the names -- and associated personal information in the form of birth dates and ages as of a particular date -- of persons who might be eligible for the early retirement incentive, but have not given notice of or otherwise made public an interest in taking advantage of it, is entirely unrelated to the performance of their duties" and may be withheld.

While I am unaware of any judicial decision that deals squarely with the issue, I would agree that the information in question may be withheld. 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.

Second, as you are aware, 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. 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].

From my perspective, the age of a public employee is largely irrelevant to the performance of one's official duties and, therefore, disclosure of a name or other details that would enable the public to know of one's age would constitute an unwarranted invasion of personal privacy. It is noted that age is among the characteristics appearing in the Human Rights Law that could result in a discrimination claim if used in determining to reject an applicant for employment. Further, having contacted the Department of Civil Service, I was informed that when an individual seeks initial employment with the State of New York or is interviewed, there is no requirement that the applicant provide his or her age or date of birth. In that context, the age of a prospective employee would, by law, be essentially irrelevant to the prospective performance of that person's official duties. In other contexts, it has been advised that personally identifying details based on age may justifiably be withheld based on considerations of privacy. For instance, lists of senior citizens who participate in a municipality's program for the aging or lists of children who participate in a summer recreation program, indicate, by their nature, that certain people fall with small age ranges. In those instances, since a class of persons would be identified by means of age, it has been advised that disclosure would result in an unwarranted invasion of personal privacy.

I recognize that reasonable people frequently have different views, especially when dealing with issues involving personal privacy, and it is emphasized that my opinion is just that, an opinion. While it is not my goal to encourage litigation and I hope that no litigation will be initiated in this instance, only a court could offer unequivocal guidance.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Peter Henner