March 13, 1997




Mr. Eugene S. Kobylinski
52 Idlewood Drive
Tonawanda, NY 14150

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. Kobylinski:

I have received your letter of February 11, which reached this office on February 19.

You wrote that, "as a taxpayer", you "would like to know the answer to the following question": "For the position titled 'Attendance' in the middle, school, what additional duties are assigned to the post?" Your attempts to obtain an answer have been unsuccessful.

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to existing records. Section 89(3) of that statute provides in part that an agency is not required to create or prepare a new record in response to a request for information. Similarly, as you inferred, the Freedom of Information Law does not require that agencies answer questions; again, that law deals with records. In the future, rather than attempting to elicit information by asking questions, it is suggested that you request records.

Second, when a request is made for existing records, 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, records that describe the duties required to be performed by a person or persons holding a certain position, they must be disclosed, for none of the grounds for denial would be applicable.

As you may be aware, §87(2)(b) states that an agency may withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Based on the judicial interpretation of the Freedom of Information Law, 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 those individuals 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 the official duties of a public officer or employee 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 items relating to public officers or employees are irrelevant to the performance of their 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, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal attorney that could indicate how that person spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social security numbers].

In my view, a job description or similar record indicating an employee's functions or assignments would clearly be relevant to the performance of his or her official duties. Therefore, even if such a record pertains to a single employee, I believe that it must be disclosed.

Also relevant to an analysis of rights of access is §87(2)(g), which permits an agency to 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. A job description or similar record would constitute "intra-agency material"; however, it would consist of factual information accessible under §87(2)(g)(i) or an agency's policy that would be available under §87(2)(g)(iii).

In short, insofar as a record exists containing the information that would answer your question, I believe that it must be disclosed.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director