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FOIL-AO-13366

May 20, 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 concerning your right to inspect records, rather than paying a fee for copies.

In this regard, when a record is available in its entirety under the Freedom of Information Law, any person has the right to inspect the record at no charge. However, there are often situations in which some aspects of a record, but not the entire record, may properly be withheld in accordance with the ground for denial appearing in §87(2). In that event, I do not believe that an applicant would have the right to inspect the record. In order to obtain the accessible information, upon payment of the established fee, I believe that the agency would be obliged to disclose those portions of the records after having made appropriate deletions from a copy of the record.

For example, I do not believe that you would have the right to inspect W-2 forms, for they include information that you have no right to see. Based upon the direction provided by the Freedom of Information Law and the courts, insofar as W-2 forms pertaining to public employees indicate gross wages, they must be disclosed. However, pursuant to §87 (2)(b) of the Freedom of Information Law concerning the ability to protect against unwarranted invasions of personal privacy, I believe that portions of W-2 forms could be withheld, such as social security numbers, home addresses and net pay, for those items are largely irrelevant to the performance of one's duties. That conclusion has been reached judicially, and the court cited an advisory opinion rendered by this office in so holding (Day v. Town of Milton, Supreme Court, Saratoga County, April 27, 1992).

In short, while portions of payroll records containing names and gross wages must be disclosed, an agency could seek payment of the requisite fee for photocopies, which would be made available after the deletion of certain details (see Van Ness v. Center for Animal Care and Control and the New York City Department of Health, Supreme Court, New York County, January 28, 1999). Again, however, if a record is available in its entirety, I believe that you would have the right to inspect it free of charge.

I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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