March 1, 1994
Mr. Charles J. Tiano
116 Chayo Mountain Road
Woodstock, NY 12498
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
Dear Mr. Tiano:
I have received your letter of January 25. Please accept my apologies for the delay in response.
You have asked whether a town board or other governmental entity "has the authority to withhold from the public the names of persons who have filed an application to fill a vacancy on the Town Board." You added that there is a vacancy on the Woodstock Town Board and that it "is known through reliable sources that the board has interviewed, in executive session, eight (8) aspirants to fill the vacancy."
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. In my view, a record or records identifying persons seeking to fill a vacancy in an elective office must be disclosed. Section 87(2)(b) of the Freedom of Information Law enables an agency to withhold "an unwarranted invasion of personal privacy". However, in more typical circumstances, a person seeking to fill an elective position attempts to make his or her name known in order to attract the interest of voters. To suggest that names of those attempting to fill the same position that has become vacant and which may be filled by means of an appointment made by an elective body would in my view be an anomaly. I am not suggesting that personal details of individuals' lives must be disclosed. Nevertheless, in my opinion, disclosure of the names of candidates for a vacant elective position could not be characterized as an unwarranted invasion of personal privacy.
Further, although §89(7) of the Freedom of Information Law states in part that nothing in that statute requires the disclosure of the name "of an applicant for appointment to public employment", an applicant for a position on a town board would not be a prospective employee seeking employment.
Second, a recent judicial decision dealt in part with a discussion in executive session concerning those under consideration to fill a vacant elective position on a public body. In holding that an executive session could not properly have been held, the court stated that:
"...respondents' reliance on the portion of Section 105(1)(f) which states that a Board in executive session may discuss the 'appointment...of a particular person...' is misplaced. In this Court's opinion, given the liberality with which the law's requirements of openness are to be interpreted (Holden v. Board of Trustees of Cornell Univ., 80 AD2d 378) and given the obvious importance of protecting the voter's franchise this section should be interpreted as applying only to employees of the municipality and not to appointments to fill the unexpired terms of elected officials. Certainly, the matter of replacing elected officials, should be subject to public input and scrutiny" (Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994).
Based on the foregoing, it is clear in my view the names of candidates who seek to fill vacant elective positions must be disclosed.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Woodstock Town Board