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September 18, 1997

 

 

 

Mr. Gary Olsen
Director of Governmental Affairs
General Building Contractors
6 Airline Drive
Albany, NY 12205

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 Mr. Olsen:

I have received your letter of August 21 in which you referred to S.3550-B/A.6394-B. At
the time of the preparation of your correspondence, the legislation had been approved by the
Legislature, but had not yet been signed by the Governor. You have sought my views concerning
access to records that would be maintained by agencies if the legislation becomes effective.

As you have described it, in brief:

"This legislation would require contractors/subcontractors to submit
payroll records to the public agency/municipality that has contracted
for a public works project. This includes thousands of local and state
contracting municipalities, agencies and authorities statewide. It is
our hope that provisions be adopted to ensure confidentiality and
consistency among all public owners on projects subject to Section
220 of the Labor Law, the Prevailing Wage statutes...

"Currently, contractors must produce these records upon request of
the Department of Labor. The Department of Transportation also
requests this information as required by federal law on federally aided
projects. These agencies, as we have been informed, redact some or
all personal information as outlined in Public Officers Law in Sections
89 (2) and 96, before production, in response to Freedom of
Information Law requests. We believe all public owners potentially
affected should abide by these laws, but we feel that they will not
know, because of the limited time frame, the procedures they must use
to ensure employee privacy and respect business proprietary interests.
Our Members would not feel comfortable submitting personal
information with no assurance that Public Officers Laws are being
followed or enforced."

In this regard, I offer the following comments.

First, 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.

Second, assuming that the payroll records at issue include a contractor's employees' names,
addresses, social security numbers and their wages, I believe that portions of those records could
properly be withheld pursuant to §87(2)(b). That provision permits an agency to withhold records
or portions thereof when disclosure would constitute "an unwarranted invasion of personal privacy."
Section 89(2)(a) authorizes an agency to delete identifying details to protect against an unwarranted
invasion of personal privacy when it makes records available. In addition, §89(2)(b) includes a series
of examples of unwarranted invasions of personal privacy, one of which pertains to:

"disclosure of information of a personal nature when disclosure would
result in economic or personal hardship to the subject party and such
information is not relevant to the work of the agency requesting or
maintained it...[§89(2)(b)(iv)].

In my opinion, what is relevant to an agency is whether the employees are being paid in accordance
with prevailing wage standards; their names, addresses and social security numbers are largely
irrelevant to that issue and may in my view be deleted to protect against an unwarranted invasion of
personal privacy.

It is noted that an Appellate Division decisions affirmed the findings of the Supreme Court
in a case involving a situation in which a union sought home addresses of an agency's contractors'
employees for the purpose of "monitoring and prosecution of prevailing wage law violations." The
court found that the employees' home addresses could be withheld, stating that the applicant's
"entitlement to access does not necessarily entitle it to the reports in their entirety. Indeed portions
of the report made available to petitioner should be expunged to protect (the) privacy of the
employees" [Joint Industry Board of the Electrical Industry v. Nolan, Supreme Court, New York
County, May 1, 1989; affirmed 159 AD 2d 241 (1990)].

In sum, while I believe that portions of the records reflective of the titles, duties, wages, hours
worked and similar data must be disclosed, disclosure of personally identifiable details pertaining to
a contractor's employees may in my view be deleted or redacted from the records prior to disclosure.

If indeed disclosure of certain details would constitute an unwarranted invasion of personal
privacy, a state agency would be prohibited from disclosing them to the public. I note that the
Personal Privacy Protection Law applies to state agencies; it does not apply to entities of local
government [see definition of "agency", Personal Privacy Protection Law, §92(1)]. Consequently,
an entity of local government may withhold records insofar as disclosure would result in an
unwarranted invasion of personal privacy, but it would not be required to do so.

In the case of a state agency subject to the Personal Privacy Protection Law, a key element
of that statute deals with the disclosure of records or personal information 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)].

With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No
agency may disclose any record or personal information", except in conjunction with a series of
exceptions that follow. One of those exceptions involves when a record is "subject to article six of
this chapter [the Freedom of Information Law], unless disclosure of such information would
constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two
of section eighty-nine of this chapter." It is noted, too, that §89(2-a) of the Freedom of Information
Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted
invasion of personal privacy as defined in subdivision two of this section if such disclosure is
prohibited under section ninety-six of this chapter". Therefore, if a state agency cannot disclose
records or portions of records pursuant to §96 of the Personal Privacy Protection Law, which I
believe to be so in this instance, it is precluded from disclosing under the Freedom of Information
Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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