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FOIL-AO-13090

December 26, 2001

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

I have received your letter in which you asked whether form "NYS-45-ATT" filed by town and village governments is accessible under the Freedom of Information Law.

The form, which is entitled "Quarterly Combined Withholding, Wage Reporting and Unemployment Insurance Return - Attachment", includes the name of the employer and five columns of information, including the names of employees, their social security numbers, "UI total remuneration/gross wages paid this quarter", gross wages subject to withholding and total tax withheld.

From my perspective, the columns indicating the names of public employees and the gross wages subject to withholding must be disclosed; the others may be withheld or deleted prior to disclosure. In this regard, I offer the following comments.

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. It is emphasized that the introductory language of §87(2) refers to an agency's ability to withhold "records or portions thereof" that fall within the grounds that follow. The phrase quoted in the preceding sentence indicates that records might contain both accessible and deniable information, and that an agency is obliged to review records in their entirety to determine which portions, if any, may justifiably be withheld.

Although tangential to your inquiry, I point out that §87(3)(b) of the Freedom of Information Law states in relevant part that:

"Each agency shall maintain...

(b) a record setting forth the name, public office address, title and salary of every officer or employee of the agency... "

As such, a payroll record that identifies all officers or employees by name, public office address, title and salary must be prepared to comply with the Freedom of Information Law. Moreover, payroll information has been found by the courts to be available [see e.g., Miller v. Village of Freeport, 379 NYS 2d 517, 51 AD 2d 765, (1976); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NYS 2d 954 (1978)]. In Gannett, supra, the Court of Appeals held that the identities of former employees laid off due to budget cuts, as well as current employees, should be made available. In addition, this Committee has advised and the courts have upheld the notion that records that are relevant to the performance of the official duties of public employees are generally available, for disclosure in such instances would result in a permissible as opposed to an unwarranted invasion of personal privacy [Gannett, supra; Capital Newspapers v. Burns, 109 AD 2d 292, aff'd 67 NY 2d 562 (1986) ; Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, October 30, 1980; Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975) ; and Montes v. State, 406 NYS 664 (Court of Claims 1978)]. As stated prior to the enactment of the Freedom of Information Law, payroll records:

"...represent important fiscal as well as operational information. The identity of the employees and their salaries are vital statistics kept in the proper recordation of departmental functioning and are the primary sources of protection against employment favortism. They are subject therefore to inspection" Winston v. Mangan, 338 NYS 2d 654, 664 (1972)].

Based on the foregoing, a record identifying agency employees by name, public office address, title and salary must in my view be maintained and made available.

It has been contended that W-2 forms and similar records, such as the form at issue, are specifically exempted from disclosure by statute on the basis of 26 USC 6103 (the Internal Revenue Code) and §697(e) of the Tax Law. In my opinion, those statutes are not applicable in this instance. In an effort to obtain expert advice on the matter, I contacted the Disclosure Litigation Division of the Office of Chief Counsel at the Internal Revenue Service to discuss the issue. I was informed that the statutes requiring confidentiality pertain to records received and maintained by the Internal Revenue Service; those statutes do not pertain to records kept by an individual taxpayer [see e.g., Stokwitz v. Naval Investigation Service, 831 F.2d 893 (1987)], nor are they applicable to records maintained by an employer, such as a school district. In short, the attorney for the Internal Revenue Service said that the statutes in question require confidentiality only with respect to records that it receives from the taxpayer.

In conjunction with the previous commentary concerning the ability to protect against unwarranted invasions of personal privacy, I believe that portions of W-2 forms, as well as the NYS -Att-45, may be withheld, such as social security numbers, and total tax withheld , for those items are largely irrelevant to the performance of one's duties. However, for reasons discussed earlier, those portions indicating public officers' or employees' names and gross wages must in my view be disclosed. Further, the same conclusion was reached in a judicial determination, and the court cited an advisory opinion rendered by this office (Day v. Town of Milton, Supreme Court, Saratoga County, April 27, 1992).

With respect to the column regarding unemployment insurance remuneration, I believe that portions of records indicating payments of unemployment insurance benefits may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Although it is not directly applicable because it applies only to information maintained by the Unemployment Insurance Division of the State Department of Labor, pertinent is §537 of the Labor Law, which is entitled "Disclosures prohibited." That statute states in subdivision (1) that:

"[I]nformation acquired from employers or employees pursuant to this article shall be for the exclusive use and information of the commissioner in the discharge of his duties hereunder and shall not be open to the public nor be used in any court in any action or proceeding pending therein unless the commissioner is a party to such action or proceeding, notwithstanding any other provisions of law. Such information insofar as it is material to the making and determination of a claim for benefits shall be available to the parties affected and, in the commissioner's discretion, may be made available to the parties affected in connection with effecting placement."

To the extent that the records sought fall within the scope of §537, they would be confidential, unless they are "material to the making and determination of a claim for benefits" or the Commissioner of Labor asserts his discretionary authority to disclose records for the purpose of effecting placement in a job.

In a judicial decision that describes the intent of §537 of the Labor Law, which had been §524 of the Labor Law, it was found that:

"...section 524 of the Labor Law prohibits the use of such records in the courts unless the Industrial Commissioner is a party to the action or proceeding. While the act does not disclose the object of the Legislature, it undoubtedly was to prevent exposure to public gaze of the names of applicants who are receiving benefits under the auspices of the statute and under which the employer bears the burden. This is a reasonable objective" [Andrews v. Cacchio, 35 NYS 2d 259, 260; 264 App. Div. 791 (1942)].

Although Andrews, supra, was decided in 1942, there is no decision of which I am aware that indicates a different intent than that quoted above. Moreover, the Andrews decision has been cited as precedent [see Clegg v. Bon Temps., Ltd., 452 NYS 2d 825 (1982)].

Based on the foregoing, and the intent to protect personal privacy, I believe that records maintained by towns or villages may be withheld insofar as they indicate payments of unemployment insurance benefits.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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