Prepared for publication by the New York State Association of Town Clerks.
FOIL and Privacy: Where Do We Draw the Line?
Many of you know that the issue of privacy has been the subject of a great deal of discussion recently. You also know that one of the exceptions in FOIL authorizes an agency, such as a town, to withhold records or portions of records when disclosure would result in “an unwarranted invasion of personal privacy” [section 87(2)(b)]. Additionally, FOIL includes a series of examples of unwarranted invasions of personal privacy [section 89(2)(b)]. Those examples offer guidance, but they don’t deal directly with numerous issues that arise which involve consideration of where to draw the line between unwarranted, as opposed to a permissible invasion of personal privacy.
When I give a presentation and the topic comes up, I often ask the crowd: “’unwarranted invasion of personal privacy’ - - does anyone know what that means?” Nobody raises a hand, because nobody clearly knows what it means, and in my opinion, nobody will ever know what it means.
Society’s views regarding privacy are constantly changing about what might be viewed as intimate or highly personal. Would the Victoria’s Secret ads that we’ve seen on network tv have been aired twenty years ago? Probably not. Well then, why are they airing today? It seems that the sensibilities of society have changed. What used to be so intimate or risqué that we wouldn’t have seen it on tv now seems to be more acceptable.
If you know teenage kids and others who partake in Facebook, you know that they share information with their friends (often hundreds) that their parents would never share. There are generational distinctions in views about privacy.
The reality is that two equally reasonable people can consider the same item of personal information and disagree. Certainly that is so in my house, and my guess is that it may be so in many of yours.
So what do we do about privacy?
One of the problems is that our laws are not necessarily consistent. You may know that section 89(7) states that FOIL does not require the disclosure of the home address of either a present or former public officer or employee. But if you’re a good citizen registered to vote, the Election Law states that your name and address are public. If you own a home, your name, address and the assessed value of your home are accessible to anyone. What do we do?
We consider the possibility that the law may provide guidance. When one statute focuses on a particular record, it prevails over a statute, like FOIL, that deals with government records generally. That’s why names and addresses of persons who receive public assistance, receive unemployment insurance or are the subject of medical or mental health care are out of bounds. In each instance, there is a statute specifying that those items cannot be disclosed. It’s also why voter registration lists and assessment records that include our names and addresses are public. They’re public because statutes separate from FOIL require disclosure.
But what if there is no statute that provides specific direction and FOIL is the statute that determines what’s public and what’s not? Fortunately, we have guidance from the courts.
First, it’s clear that the phrase unwarranted invasion of personal privacy involves items identifiable to natural persons, humans. The exception does not apply to things, such as corporations. If a request is made, for example, for a list of vendors doing business with the town, it would be available because there is nothing “personal” about the information, even if it includes the identity of an individual; he/she is identified in relation to his/her business or professional capacity.
Second, the courts have made distinctions between ordinary people who are identified in government records and people like us, public officers or employees.
When the items relate to ordinary people, I refer to “the gut test.” In considering access to personally identifiable information contained in agency records, the Court of Appeals, the state’s highest court, used the “reasonable person” standard and found that disclosure would constitute an unwarranted invasion of personal privacy when an item “would ordinarily and reasonably be regarded as intimate, private information” [Hanig v. NYS Department of Motor Vehicle, 79 NY2d 106 (1992)]. When a request is made that includes items of a personal nature and you conclude that those items are nobody’s business, that disclosure would be offensive to the average person, or that they may be characterized as “intimate”, usually you will have the ability to redact those items.
For example, if a senior citizen submits his/her income tax form to seek a reduction in a real property tax assessment, it has been advised that the information in the tax form is nobody’s business. In Hanig, the request involved the portion of a driver’s license application that might have indicated that the applicant had a disability. Although it was argued that the item did not consist of medical information, the Court found that it was like medical information and is, indeed, intimate, personal and could be withheld. Similarly, it has been advised that personally identifying details regarding those who have applied for or been granted handicapped parking permits or tags may be withheld to protect their privacy.
With respect to the privacy of public officers and employees, the courts have told us that we have less privacy than others. In short, we are required to be more accountable than others; the public is stuck with us - - until the next election, budget cuts, or in my case, retirement or death, whichever comes first (I’m eligible for both). More importantly, in many instances, the courts have determined that items that relate to our duties are generally accessible to the public under FOIL. In those situations, disclosure would result in a permissible, not an unwarranted invasion of personal privacy.
Our salaries and our gross wages are public. Our attendance records involving time in, time out, leave time accrued or used have been found to be public. If there are certain criteria that must be met to be eligible for a position, such as a degree in a certain area, a license or a certification, those portions of a resume or application indicating that the person in that position is qualified are accessible; on the other hand, other portions of the resume or application that are unrelated to the position, such as a social security number, marital status, employment at McDonald’s, hobbies and the like may be withheld.
Again, there are many laws, and often, they may lead to inconsistent results concerning what must be disclosed, or conversely, what may or must be withheld. In most cases, if the issue involves the privacy of ordinary people who are identified in records, the gut test will work. What would the average reasonable person feel about disclosure of this item? If it involves public officers or employees, often the dividing line can be drawn between the items that relate to one’s duties, in which case disclosure would be the general rule, as opposed to those are irrelevant to those duties, in which case, the items can likely be withheld.