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FOIL-AO-13108

 

December 28, 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 information presented in your correspondence.

Dear

I have received your letter of December 13 in which you sought an advisory opinion concerning the propriety of a denial of access to records by the Wappingers Central School District.

The rejection involves "the names of all current teachers who were eligible to receive the benefit of a salary elective program prior to July 1, 2001 but who declined to do so." The collective bargaining agreement between the District and the Wappingers Congress of Teachers in Article 9 includes the terms of the "Salary Elective Program" and provides in relevant part that:

"A unit member who meets all three of the following eligibility requirements [when the member has];

(1) 15 years of District service, (2) 20 years of member service in the New York State Teachers' Retirement System, and (3) eligibility for a service retirement pursuant to the rules and regulations of the New York State Teachers' Retirement System..."

The District denied access based on a contention that "to release any information relating, even in part, to an employee's age would constitute an unwarranted invasion of privacy."

From my perspective, a denial of access is illogical, for records reflecting each of the requirements for participation in the Program would be accessible under the Freedom of Information Law. In this regard, I offer the following comments.

As you are likely aware, 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.

Pertinent to the matter is §87(2)(b), which states that agencies may withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers employees. It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public officers and employees are required to be more accountable than others. Further, with regard to records pertaining to public officers and employees, the courts have found that, as a general rule, records that are relevant to the performance of a their official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].

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, those items were determined to be available even before the enactment of the Freedom of Information Law, for it was found that they:

"...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 favoritism. They are subject therefore to inspection" Winston v. Mangan, 338 NYS 2d 654, 664 (1972)].

Because it is clearly relevant to the duties of all public employees, a record identifying public employees by name, public office address, title and salary must be maintained and made available to any person.

I note that §89(2)(b) of the Freedom of Information Law includes a series of examples of unwarranted invasions of personal privacy, the first of which pertains to the disclosure of "employment...histories." Notwithstanding that provision, it has been advised, based on logic in relation to rights of access to a variety of records pertaining to public employees, that elements of public employees' employment histories must be disclosed, and the advice of this office has been sustained by the courts. In a decision that was affirmed by the Appellate Division, the lower court referred to a request for employment histories of certain public employees (identified by initials) and wrote as follows:

"Petitioner contends that GP and LG have no reasonable expectation of privacy to the extent that their employment histories include public employment. This position is in accord with the view taken by the Committee on Open Government (the 'Committee'). 'Since the Committee is the state agency charged with administering the Freedom of Information Law, its interpretation of the statute, if not irrational or unreasonable, should be upheld' (Miracle Mile Associates v. Yudelson, 68 AD2d 176, 181, 417 NYS2d 142 [4th Dept], lv denied, 48 NY2d 706, 422 NYS2d 68 [1979], lv denied 48 NY2d 606, 421 NYS2d 1031 [1979], see also, Sheehan v. City of Binghamton, 59 AD2d 808, 398 NYS2d 905 [3d Dept 1977].

"In FOIL-AO-7065, the Committee advised as to a request for the resume of a public employee. The Committee opined...that:

Although some aspect of one's employment history may be withheld, the fact of a person's public employment is a matter of public record, for records identifying public employees, their titles and salaries must be prepared and made available under the Freedom of Information Law [see section 87(3)(b)].

"Accordingly, to the extent that the records sought by petitioner contain data which would be available from the public employers under FOIL or similar statutes, employment histories of GP and LP are not exempt from disclosure. While such employment histories fit within the exemption provided under Public Officers Law §89(2), the statute merely provides a ground on which the agency 'may' withhold a document. Since this information is otherwise subject to disclosure, and has no legitimate claim to confidentiality, its inclusion in an employment history on a resume or job application does not endow it with protection which it otherwise would not have" [Kwasnik v. The City of New York, Supreme Court, New York County, September 26, 1997].

In affirming the foregoing, the Appellate Division stated that: "We reject CUNY's argument that the public employment history of its employees...should be shielded from disclosure as an unwarranted invasion of the employees' privacy....This result is supported by the Committee on Open Government, to which courts should defer..." [262 AD2d 171, 691 NYS2d 525, 526 (1999)].

In a somewhat related vein, the Court of Appeals has held that records indicating a public employee's dates of attendance, including days and dates of sick leave, must be disclosed [Capital Newspapers v. Burns, 67 NY2d 562 (1986)].

In consideration of the foregoing, I believe that the requirements for eligibility in the Salary Elective Program involve information that is otherwise available under the Freedom of Information Law. In short, the date of one's initial employment (or the date of one's initial payment) and other items indicating the duration of one's public employment, are found in various records determined to be public in judicial decisions construing the Freedom of Information Law. That being so, I do not believe that disclosure would constitute an unwarranted invasion of privacy or that the District's determination is justifiable.

In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to District officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Wayne F. Gersen
Joseph DiDonato