The New York State Department of Civil Service [DCS] denied a Freedom of Information request submitted by the New York State Public Employees Federation, AFL-CIO [PEF] seeking the names of candidates for 12 specific civil service examinations "by ethnicity and gender," of all approved, disapproved, failed, and passed applicants for such examinations.
Rejecting PEF's request, the DCS's records access officer advised PEF that records for disapproved and failed candidates were withheld pursuant to Public Officers Law §87(2)(b) as disclosure would constitute an unwarranted invasion of personal privacy and, further, information with respect to failed candidates on a civil service examination was barred by 4 NYCRR 71.3.
PEF filed an administrative appeal, arguing that the information requested was "solely summary data regarding the applicant pool as a whole, rather than personal information," and, therefore, disclosure would not constitute an unwarranted invasion of privacy. DCS's FOIL appeals officer disagreed, and issued a final determination holding that the denial of the requested records was proper. The appeals officer reasoned that "by combining these sources of readily available information, it would be simple to compare a list of employees in the relevant promotion field job titles with the names on the eligible lists," which could lead to revealing the identities of "failed candidates". PEF then initiated a CPLR Article 78 action challenging the DSC's appeals officer's decision.
Supreme Court dismissed PEF's Article 78 petition, finding that considering the information PEF already had access to, were it provided the gender and ethnicity information of individuals who failed certain examinations, PEF would be able to "greatly narrow" and ultimately identify such candidates in contravention of 4 NYCRR 71.3.
In response to PEF's appealing the Supreme Court's ruling, the Appellate Division affirmed the lower court's decision.
Citing Matter of Broach & Stulberg, LLP v New York State Dept. of Labor, 195 AD3d 1133,, lv denied, 37 NY3d 914, the Appellate Division explained that FOIL requires that an agency, "in accordance with its published rules, make available for public inspection and copying all records, except those records or portions thereof that" are statutorily exempt from disclosure,* which include materials that, "if disclosed would constitute an unwarranted invasion of personal privacy" and thus allows an agency to withhold "records otherwise available ... to prevent unwarranted invasions of personal privacy." In the words of the court, "[a]n unwarranted invasion of personal privacy has been characterized as that which would be offensive and objectionable to a reasonable person of ordinary sensibilities".
DCS's rules** prohibit disclosing "any information" relating to candidates who failed certain examinations. In the words of the Appellate Division, "[i]ndeed, such disclosure would result in an unwarranted invasion of personal privacy, as a reasonable person of ordinary sensibilities would find the disclosure of their name tied to a failed civil service examination to be offensive and objectionable.
Noting that Supreme Court engaged in a sufficient evaluation, "balancing the privacy interests at stake against the public interest in disclosure of the information", the Appellate Division opined DCS met its burden of proving that "gender and ethnicity information of candidates who failed certain civil service examinations was exempt from disclosure under FOIL, Supreme Court properly dismissed the [PEF] petition".
* See Public Officers Law §87[2]. N.B. The release of some public records may be limited by a specific statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.
** See 4 NYCRR 71.3.
Click HERE to access the Appellate Division's decision posted on the Internet.