NY.gov Portal State Agency Listing

 

May 19, 1997

 

 

 

Ms. Carolyn Schurr
General Counsel
Newsday
235 Pinelawn Road
Melville, NY 11747-4250

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 Ms. Schurr:

I have received your correspondence of April 25. You have
questioned the propriety of a denial of a request by Suffolk County
for the names and salaries of all full time and part time employees
of the County Police Department assigned to the Office of the
District Attorney. Although their salaries were disclosed, the
names of the officers were withheld "on the ground that disclosure
would endanger the safety of the officers."

From my perspective, the denial is unnecessarily broad and
inconsistent with law. In this regard, I offer the following
comments.

First, the legislative history of the Freedom of Information
Law is, under the circumstances, pertinent to the matter. Since
its enactment in 1974, the statute has included a requirement that
agencies prepare lists that identify employees by name, address,
title and salary. The original version did not specify which
address of a public employee, the home address or the business
address, should be included in such a list. However, it did
specify that neither the names nor the addresses of law enforcement
officers were required to be included in the list. The current
version of the Freedom of Information Law, which was enacted in
1977 and became effective in 1978, requires that each agency is
required to maintain a record setting forth the name, public office
address, title and salary of every officer or employee of the
agency. In my view, the Legislature recognized that home addresses
of public employees would, if disclosed, represent a significant
infringement of privacy in some instances. Further, the home
address of an officer or employee is not generally relevant to the
performance of one's official governmental duties; pertinent,
however, is an employee's business or public office address. In
short, it was determined by means of the legislation that agencies
must prepare records that identify public officers and employees
and indicate their work locations.

Second, 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.

One of the grounds for denial, §87(2)(b), permits an agency to
withhold record or portions of records when disclosure would result
in "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)].

I agree that the only exception to rights of access that could
potentially be cited with respect to the information sought would
be §87(2)(f). The cited provision states that an agency may
withhold records or portions of records when disclosure would
"endanger the life or safety of any person." In my view,
disclosure of the identities and assignments of municipal
employees, including law enforcement officers, would not in most
instances endanger their lives or safety. Even in the case of
assignments to the Office of the District Attorney, it is unlikely
that disclosure of the name of every officer so assigned would pose
a threat to his or her safety. In my opinion, §87(2)(f) would not
apply with respect to disclosure of the identities of those who are
not in face to face contact or "constant interaction" with the
"criminal element." Further, even with respect to those who may
work undercover with the criminal element, I would conjecture that
they do not use their real names, display any identification that
would indicate that they are law enforcement officers, or work
regular business hours in carrying out their duties. If that is
so, I do not believe that the County would have any justifiable
basis for withholding names of the employees in question.

The denial of your appeal referred to case law asserting that
an agency may withhold records merely by demonstrating that there
is a "possibility" that disclosure would endanger one's life or
safety [e.g., Ruberti, Girvin & Ferlazzo v. Division of State
Police, __ AD2d __, 641 NYS2d 411, 415 (1996)]. Nevertheless, in
my view, such an assertion is simply too broad. Aside from the
undercover situation, police officers and other law enforcement
officers typically identify themselves, wear nameplates, or display
badge or shield numbers in the performance of their duties. In
those cases, I believe that the kind of information that you are
seeking must be disclosed. Again, even in the situation in which
officers carry out undercover duties, it seems unlikely that they
would do so in a manner in which disclosure of their real names
would jeopardize their safety.

I hope that I have been assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Derrick J. Robinson