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FOIL-AO-13336

April 24, 2002

 

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 in which you sought assistance in relation to a denial of a request by the Rochester-Genesee Regional Transportation Authority ("the Authority") for certain records of the Fairport Central School District ("the District").

By way of background, you wrote that a subsidiary of the Authority instituted a program for young passengers called "Books on Buses." In brief, buses are stocked with books for children to read while commuting to school with their parents, and thousands of books have been donated. You added that teachers have used the program as a means of teaching a variety of skills to their students. In an effort to contact elementary teachers to inform them about the program, you sought lists of those teachers from several school districts, and, as I understand your remarks, all but one replied in a positive manner. Specifically, the Superintendent of the District that denied access suggested that the Authority is "a firm", that the list was sought for a commercial purpose, that disclosure would constitute "an unwarranted invasion of personal privacy", and that children are often used as "marketing pawns."

From my perspective, the Superintendent has mischaracterized the nature of the Authority and misinterpreted the Freedom of Information Law. In this regard, I offer the following comments.

First, §1299-dd of the Public Authorities Law provides that the Authority "shall be a body corporate and politic constituting a public benefit corporation", and §1299-ee, in describing the purposes of the Authority, states that:

"It is hereby found and declared that such purposes are in all respects for the benefit of the people of the state of New York and the authority shall be regarded as performing an essential governmental function in carrying out its purposes and in exercising the powers granted by this title."

Based on the foregoing, I do not believe that the Authority can validly be characterized as "a firm" or that its purposes could be described as "commercial." On the contrary, the provision quoted above indicates that its function is governmental.

Second, with respect to rights of access, 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.

With certain exceptions, the Freedom of Information Law is does not require an agency to create records. Section 89(3) of the Law states in relevant part that:

"Nothing in this article [the Freedom of Information Law] shall be construed to require any entity to prepare any record not in possession or maintained by such entity except the records specified in subdivision three of section eighty-seven..."

However, a payroll list of employees is included among the records required to be kept pursuant to "subdivision three of section eighty-seven" of the Law. That provision 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, I believe that the payroll record described above must be disclosed for the following reasons.

Pertinent is the provision to which the Superintendent alluded,§87(2)(b) of the Freedom of Information Law, which permits an agency to withhold record or portions of records when disclosure would constitute "an unwarranted invasion of personal privacy." However, 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)]. Miller dealt specifically with a request by a newspaper for the names and salaries of public employees, and in Gannett, 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 operation 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)].

In short, a record identifying agency employees by name, public office address, title and salary must in my view be maintained and made available.

Third, in general, the reasons for which a request is made or an applicant's potential use of records are irrelevant, and it has been held that if records are accessible, they should be made equally available to any person, without regard to status or interest [see e.g., M. Farbman & Sons v. New York City. 642 NY 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. However, §89(2)(iii) of the Freedom of Information Law permits an agency to withhold "lists of names and addresses if such lists would be used for commercial or fund-raising purposes" on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Due to the language of that provision, the intended use of a list of names and addresses is relevant, and case law indicates that an agency can ask why a list of names and addresses has been requested [see Golbert v. Suffolk County Department of Consumer Affairs, Sup. Ct., Suffolk Cty., (September 5, 1980).

Nevertheless, §89(6) of the Freedom of Information Law states that:

"Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity to any party to records."

As such, if records are available as of right under a different provision of law or by means of judicial determination, nothing in the Freedom of Information Law can serve to diminish rights of access. In this instance, since the payroll information in question was found to be available prior to the enactment of the Freedom of Information Law, I believe that it must be disclosed, regardless of the intended use of the records. Consequently, in my view, the payroll record required to be maintained should be disclosed to any person, irrespective of its intended use.

Lastly, from my perspective, the provision dealing with lists of names and addresses is intended to enable agencies to withhold lists that would be used to solicit individuals at their residences. In the case of the payroll record, the residence address is not included; rather the record includes the "public office address", the location where public employees carry out their governmental duties. In my view, there is nothing "personal" or intimate about the work location of a public employee, and that kind of information should be made available on request.

In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to the Superintendent and the District's Board of Education.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: William C. Cala
Board of Education