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June 5, 1997

 

 

 

Mrs. John A. Henry
87-44 Little Neck Parkway
Floral Park, NY 11001

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 Mrs. Henry:

I have received your letter of May 15 in which you sought
assistance in obtaining records from the Manhasset Lakeville Water
District.

You wrote that you have requested a variety of records on
behalf of your husband concerning his employment with the District.
However, you indicated that you have faced a series of delays,
incomplete responses to requests, and errors in the contents of the
records. You also asserted that the errors are resulting in
ineligibility on the part of your husband for retirement benefits
and that the District has refused access to most of the records,
"claiming that [you] do not need them."

In this regard, I offer the following comments.

First, an applicant's need for records is generally
irrelevant. It has been held that when records are accessible
under the Freedom of Information Law, they must be made available,
irrespective of one's need, status or interest [see Burke v.
Yudelson, 368 NYS 2d 779, aff'd 51 AD2d 673, 378 NYS 2d 165 (1976)
and M. Farbman & Sons v. New York City Health and Hosps. Corp., 62
NY2d 75 (1984)].

Second, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests. Specifically, §89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision states in relevant part that:

"...any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

Third, the records in which you are interested include time
sheets, those indicating his earnings and use of personal and sick
leave, as well as the accrual of overtime. In addition, you are
interested in obtaining correspondence relating to your husband's
entitlement to retirement benefits between the District and the
State Retirement System.

From my perspective, based upon the language of the Freedom of
Information Law and its judicial interpretation, the kinds of
records to which you referred must be disclosed.

With respect to time and attendance records, as well as
payroll records, pertinent is §87(2)(b), which permits an agency to
withhold records insofar as disclosure would constitute "an
unwarranted invasion of personal privacy." In brief, the courts
have found that those kinds of records are relevant to the
performance of one's official duties and that, therefore,
disclosure would constitute a permissible, rather than an
unwarranted invasion of personal privacy. Consequently, such
records have been found to available to any person. In the context
of your requests, privacy is not an issue, for your husband is
essentially requesting records pertaining to himself, or you are
requesting records on his behalf. In short, an individual cannot
engage in an unwarranted invasion of his or her own privacy.

Also significant to an analysis of rights of access is
§87(2)(g), which permits an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those
portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

Attendance records could be characterized as "intra-agency
materials." However, those portions reflective of dates or figures
concerning the use of leave time or absences or the time that
employees arrive at or leave work would constitute "statistical or
factual" information accessible under §87(2)(g)(i).

In a decision affirmed by the State's highest court dealing
with attendance records, specifically those indicating the days and
dates of sick leave claimed by a particular employee, it was found,
in essence, that disclosure would result in a permissible rather
than an unwarranted invasion of personal privacy. In that case,
the Appellate Division found that:

"One of the most basic obligation of any
employee is to appear for work when scheduled
to do so. Concurrent with this is the rights
of an employee to properly use sick leave
available to him or her. In the instant case,
intervenor had an obligation to report for
work when scheduled along with a right to use
sick leave in accordance with his collective
bargaining agreement. The taxpayers have an
interest in such use of sick leave for
economic as well as safety reasons. Thus it
can hardly be said that disclosure of the
dates in February 1983 when intervenor made
use of sick leave would constitute an
unwarranted invasion of privacy. Further, the
motives of petitioners or the means by which
they will report the information is not
determinative since all records of government
agencies are presumptively available for
inspection without regard to the status, need,
good faith or purpose of the applicant
requesting access..." [Capital Newspapers v.
Burns, 109 AD 2d 92, 94-95 (1985), aff'd 67
NY 2d 562 (1986)].

Based on the foregoing, it is clear that time and attendance
records, including references to the use or accrual of personal,
sick or vacation leave must be disclosed.

With regard to payroll information, one of the few instances
in the Freedom of Information Law in which an agency is required to
maintain a particular record involves §87(3)(b), which states that
"Each agency shall maintain...a records setting forth the name,
public office address, title and salary of every officer or
employee of the agency..." As such, salary records pertaining to
public employees are clearly available. Further, it has been
determined that those aspects of employee records indicating gross
wages, as on a W-2 form, must be disclosed (Day v. Town Board of
Town of Milton, Supreme Court, Saratoga County, April 27, 1992).

In short, the statistical and factual information at issue,
based on the language of the Freedom of Information Law and its
judicial interpretation, must be disclosed.

The only area in which the District might have the ability to
deny access would involve correspondence between the District and
the Employees Retirement System. Those kinds of records would
consist of inter-agency materials. As stated earlier, those
portions of such records reflective of opinion, advice,
recommendation and the like could be withheld by the District.

Nevertheless, I believe that the same records would be
available from the Retirement System pursuant to a different
provision of law that does not apply to the District or other
entities of local government but which requires certain disclosures
by state agencies. The Personal Privacy Protection Law deals with
the disclosure of records or personal information maintained by
state agencies concerning data subjects. A "data subject" is "any
natural person about whom personal information has been collected
by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal
information" is defined to mean "any information concerning a data
subject which, because of name, number, symbol, mark or other
identifier, can be used to identify that data subject" [§92(7)].
For purposes of Personal Privacy Protection Law, the term "record"
is defined to mean "any item, collection or grouping of personal
information about a data subject which is maintained and is
retrievable by use of the name or other identifier of the data
subject" [§92(9)]. Under §95 of the Personal Privacy Protection
Law, with certain exceptions, a data subject has rights of access
to records about himself or herself that are maintained by a state
agency. As I understand the matter, insofar as the Retirement
System maintains records pertaining to your husband, they would be
available to him from the Retirement System, for none of the
exceptions would apply.

As you requested, copies of this opinion will be forwarded to
the officials identified in your letter.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Elvira Klupt
Francis Gould
Dana S. Riell