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FOIL-AO-13610
August 29, 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 correspondence in which you sought an opinion concerning several
requests made under the Freedom of Information Law to the Town/Village of Harrison. In some
instances, you were informed that records did not exist; in others, records were withheld on the
ground that disclosure would result in an "unwarranted invasion of personal privacy."

In this regard, based on a review of your requests and the responses to them, I offer the
following comments.

It is noted at the outset that the Freedom of Information Law pertains to existing records, and
§89(3) states in part that an agency, such as a town, is not required to create or prepare a record in
response to a request. Therefore, if, for example, there is no record reflective of "the schedule for
staffing for the desk in the police station indicating those sgts. answering the phone for April to
August 2002", the Town would not be obliged to prepare a new record that contains the information
of your interest.

In a related vein, however, I note that the Freedom of Information Law pertains to all agency
records, and that §86(4) defines the term "record" expansively to include:

"...any information kept, held, filed, produced, reproduced by, with
or for an agency or the state legislature, in any physical form
whatsoever including, but not limited to, reports, statements,
examinations, memoranda, opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings, maps, photos, letters,
microfilms, computer tapes or discs, rules, regulations or codes."

Therefore, insofar as the Town maintains records, irrespective of their physical form, that contain
the information requested, I believe that they would be subject to rights of access conferred by the
Freedom of Information Law.

It is suggested that, in the future, requests should not be as specific as your request quoted
above. There may be no record characterized as a "schedule"; perhaps it is called a duty roster.
There may not be a record containing the information sought for the specific period to which you
referred. A schedule or similar record might not identify officers by rank. Rather than referring to
specific items, it is recommended that you merely seek records or portions of records that identify
those assigned to desk duty at the police department for a period covering certain dates. By making
a request of that nature, the name or characterization of records kept by the Town would not be
relevant, and the problem of mischaracterizing records would be eliminated.

I note, too, that when an agency indicates that it does not maintain or cannot locate a record,
an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of
Information Law provides in part that, in such a situation, on request, an agency "shall certify that
it does not have possession of such record or that such record cannot be found after diligent search."
If you consider it worthwhile to do so, you could seek such a certification.

Assuming that records exist which include information indicating the identities of employees
assigned to desk duty at given times, I believe that they would be available.

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.

The initial ground for denial,§87(2)(a), pertains to records that "are specifically exempted
from disclosure by statute." Section 50-a of the Civil Rights Law, exempts certain records from
disclosure, but in my opinion, not those that you requested. Section 50-a requires that an
agency keep confidential those personnel records pertaining to a police officer that are "used to
evaluate performance toward continued employment or promotion..." In my view, there is nothing
in records that you requested that involve an evaluation of performance. In a decision by the Court
of Appeals, the state's highest court, sustaining a denial of access to reprimands of police officers,
the Court emphasized that:

"...when access to an officer's personnel records relevant to
promotion or continued employment is sought under FOIL,
nondisclosure will be limited to the extent reasonably necessary to
effectuate the purposes of Civil Rights Law § 50-a - - to prevent the
potential use of information in the records in litigation to degrade,
embarrass, harass or impeach the integrity of the officer. We said as
much in Matter of Prisoners' Legal Services (supra), when after
describing the legislative purpose of section 50-a, we expressly
stipulated that 'records having remote or not potential use, like those
sought in Capital Newspapers, fall outside the scope of the statute'
(73 NY2d, at 33 [emphasis supplied]). Thus, in Capital Newspapers
v Burns, we upheld FOIL disclosure of a single police officer's
record of absences from duty for a specific month. By itself, the
information was neutral and did not contain any invidious
implications capable facially of harassment or degradation of the
officer in a courtroom. The remoteness of any potential use of that
officer's attendance record for abusive exploitation freed the courts
from the policy constraints of Civil Rights Law § 50-a, enabling
judicial enforcement of the FOIL legislative objectives in that case"
[Daily Gazette v. City of Schenectady, 93NY2d 145, 157-158
(1999)].

Because the kinds of records that you requested do not evaluate performance, and because those
records are "neutral", §50-a of the Civil Rights Law would not in my opinion serve to authorize the
Town to deny access.

Several judicial decisions, most notably, the case cited in Daily Gazette in the passage
quoted above, indicate that the records sought must be disclosed. In Capital Newspapers v. Burns
[67 NY2d 562 (1986)], the Court of Appeals unanimously affirmed a decision granting access to
records indicating the days and dates of sick leave claimed by a named police officer. Those
documents might be found in a police officer's personnel file, but they are not the kind of records
that fall within §50-a of the Civil Rights Law.

While tangential to the matter, I point out that §87(3) 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..."

Although §87(2)(b) of the Freedom of Information Law authorizes an agency to withhold
records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy",
the courts have provided substantial direction regarding the privacy of public employees. First, it
is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in
various contexts that public employees are required to be more accountable than others. Second,
with regard to records pertaining to public employees, the courts have found that, as a general rule,
records that are relevant to the performance of a public employee' s 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);
Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980);
Capital Newspapers v. Burns, supra]. Conversely, to the extent that records are irrelevant to the
performance of one's official duties, it has been found that disclosure would indeed constitute an
unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ,
Nov. 22, 1977].

Based upon the foregoing, it is clear in my view that records reflective of assignments of
public employees must be made available. Similarly, records reflective of other payments, whether
they pertain to overtime, or participation in work-related activities, for example, would be available,
for those records in my view would be relevant to the performance of one's official duties. As
indicated earlier, Capital Newspapers v. Burns, supra, involved a request for records reflective of
the days and dates of sick leave claimed by a particular municipal police officer, and in granting
access, the Court of Appeals found that the public has both economic and safety reasons for
knowing when public employees perform their duties and whether they carry out those duties when
scheduled to do so. As such, attendance records, duty rosters and similar documents, including
those involving overtime work, are in my opinion clearly available, for they are relevant to the
performance of public employees' official duties. Similarly, I believe that records reflective of
payment of overtime must be disclosed, again, because the public has an economic interest in
obtaining those records and because the records are relevant to the performance of public
employees' official duties.

Items that may appear in the records of your interest that are irrelevant to the performance
of one's duties, i.e., social security numbers, home addresses, deductions, alimony payments and
the like, may in my opinion be deleted prior to disclosure of the remainder of the records.

With specific respect to cancelled checks, the front side of cancelled checks have been found
to be public, it has been held that the back of the checks may be withheld on the ground that
disclosure would result in an unwarranted invasion of personal privacy. The court found, in
essence, that inspection of the back of a check could indicate how an individual chooses to spend
his or her money, which is irrelevant to the performance of that person's duties (see Minerva v.
Village of Valley Stream, Supreme Court, Nassau County, May 20, 1981).

With regard to disclosure of the names of police officers who have been "on disability",
while I know of no decision that focuses directly on the issue, the mere indication that a public
employee is or has been on disability is, in my view, no more intimate or personal than disclosure
of days and dates of sick leave, which, again, were found to be accessible in Capital Newspapers.
Insofar as those kinds of records indicate the nature of an illness or disability, those entries, which
are akin to medical details, may in my opinion be deleted.

Lastly, in consideration of the preceding remarks concerning access to records, I direct you
to a statement concerning the intent and utility of the Freedom of Information Law, the Court of
Appeals, the State's highest court, found that:

"The Freedom of Information Law expresses this State's strong
commitment to open government and public accountability and
imposes a broad standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New York City Health
and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in
furtherance of the public's vested and inherent 'right to know', affords
all citizens the means to obtain information concerning the day-to-
day functioning of State and local government thus providing the
electorate with sufficient information 'to make intelligent, informed
choices with respect to both the direction and scope of governmental
activities' and with an effective tool for exposing waste, negligence
and abuse on the part of government officers" (Capital Newspapers
v. Burns, supra, 565-566).

Based on the foregoing, I believe that the need to enable the public to make informed choices
and provide a mechanism for exposing waste or abuse can be balanced against the possible
infringement upon the privacy of present or former public officers or employees in a manner
consistent with the preceding commentary.

In an effort to enhance compliance with and understanding of the Open Meetings and
Freedom of Information Laws, copies of this opinion will be sent to Town officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Joan B. Walsh
Town Board
Joseph L. Latwin