March 17, 1997




Mr. Rafael Robles
88-A-8275 E-5-7
P.O. Box 51
Comstock, NY 12821

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. Robles:

I have received your letter of February 24. You asked whether you may have the right to know whether certain experts who testified at your trial are certified in their fields and whether you may obtain records concerning their education. You also inquired with respect to an office in Virginia that traces weapons and the location of a firearms manufacturer.

In this regard, I have no knowledge concerning the Virginia entity or the firearms manufacturer to which you referred. Both of those areas of inquiry involve matters that appear to be beyond the scope of the New York Freedom of Information Law.

With respect to certifications and educational backgrounds of experts, I believe that records containing those kinds of information must be disclosed in conjunction with 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.

The only ground for denial significant to an analysis of rights of access is §87(2)(b), which permits an agency to withhold records to the extent that disclosure would result in "an 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. Further, 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].

As I understand it, the issuance of a certification, which I believe is the equivalent of a license, is based upon findings by a certifying or licensing entity that a particular individual has met the qualifications to engage in a particular area or areas of endeavor. As such, I believe that it is clearly relevant to the performance of an individual's duties.

Lastly, I note that it was recently held that disclosure of a public employee's educational background would not constitute an unwarranted invasion of personal privacy [see Ruberti, Girvin & Ferlazzo v. NYS Division of State Police, 641 NYS 2d 411, ___ AD 2d ___ (1996)].

I hope that I have been of assistance.



Robert J. Freeman
Executive Director