Documents concerning an employee's separation and post-termination employment benefits available under New York's Freedom of Information Law William E. Hamilton submitted a Freedom of Information Law (FOIL) request seeking documentation concerning "the modification, amendment and/or termination of the employment agreement" between the Jordan-Elbridge Central School District and its superintendent, Marilyn Dominick, as well as any document relating to the termination of Dominick's employment with the district and any post-termination employment benefits. When the District declined to provide Hamilton with the documents he sought, he filed a petition in Supreme Court seeking a court order compelling the District to provide the documents he had sought. Judge Greenwood stated that only one document was at issue: the agreement between Jordan-Elbridge and Dominick concerning her resignation and retirement. Explaining that FOIL is based upon a presumption of access and all records of an agency are available except to the extent that the records or portions thereof fall within one or more grounds for denial, as set forth in Public Officer's Law §87,* the court noted that the statute is to be "liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government." Significantly, Judge Greenwood commented that "both case law and the Committee on Open Government Advisory Opinions have held that a contract between an administrator and a school district must be disclosed under the FOIL, and neither the characterization of the documents as personal records nor their placement in personnel files render the documents confidential or deniable under the law." In response to the School District's "justification for withholding the document," Judge Greenwood conducted an in camera inspection of the document in question** and concluded that "none of the personal information alleged is contained in the agreement as [the District] claimed. Nor does the agreement contain a confidentiality provision as alleged by [the School District].*** In addition, Judge Greenwood said that the Court "would not be not bound by a confidentiality agreement and must make its own determination regarding disclosure." Finally, Judge Greenwood indicated that a party is entitled to its legal fees in prosecuting a FOIL proceeding if the party establishes that: 1) it has substantially prevailed; 2) the record sought was of clearly significant interest to the general public; and 3) the agency lacked a reasonable basis in law for withholding the record. Here, said the court, there was no confidentiality agreement upon which the School District could have reasonably relied, nor is there any confidential information contained in the document that was required to be redacted. Also, said the court, Hamilton had shown that the document is of significant interest to the general public and the Superintendent's desire to keep the reason for her retirement and value of her severance package secret is not a sufficient basis under the Freedom of Information Law to deny the subject FOIL request. Accordingly, Judge Greenwood awarded Hamilton "attorney's fees in the amount of $2,500." * The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 – Confidentiality of records; §33.13, Mental Hygiene Law – Clinical records; confidentiality]. ** The term "in camera" is used to characterize a hearing or inspection of documents that takes places in private, often in a judge's chambers. *** Robert J. Freeman, Executive Director, Committee on Open Government, has addressed "non-disclosure agreements." His views are set out in the "Staff Advisory Opinion" posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f14114.htm Further, in LaRocca v Jericho UFSD, 220 AD2d 424, the Appellate Division said that "as a matter of public policy, the Board of Education cannot bargain away the public's right to access to public records." The court ruled that the settlement agreement in question, or any part of it, providing for confidentiality or purporting to deny the public access to the document "is unenforceable as against the pubic interest." The decision, Hamilton v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51663(U), Decided on September 23, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports], is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51663.htm NYPPL
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