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February 10, 1998




Mr. George Rand
835 Princeton Road
Franklin Square, NY 11010

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. Rand:

I have received your letter of January 16. You have sought my views
concerning the difficulties you have encountered in relation to your efforts to
obtain "salary data for teachers and the administrative staff showing base
salary and other pay or stipends for the current school year or last calendar
year or any 12 month period."

From my perspective, the information sought must be disclosed. 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.
While two of the grounds for denial are relevant to an analysis of rights of
access, neither in my opinion could validly be asserted to withhold the
information in which you are interested.

Of significance 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.

The information in question would constitute "intra-agency materials."
However, it would appear to consist solely of statistical or factual information
that must be disclosed under §87(2)(g)(i), unless a different ground for denial
could properly be asserted.

Second, I point out that, with certain exceptions, the Freedom of
Information Law is does not require an agency to create records. Section
89(3) of the Law states in relevant part that:

"Nothing in this article [the Freedom of
Information Law] shall be construed to require
any entity to prepare any record not in
possession or maintained by such entity except
the records specified in subdivision three of
section eighty-seven..."

However, a payroll list of employees is included among the records required
to be kept pursuant to "subdivision three of section eighty-seven" of the Law.
Specifically, that provision 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... "

As such, a payroll record that identifies all officers or employees by name,
public office address, title and salary must be prepared to comply with the
Freedom of Information Law. Moreover, I believe that the payroll record and
other related records identifying employees and their wages must be disclosed.

Of primary relevance is §87(2)(b), which 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)]. 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
operational 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)].

In short, a record identifying agency employees by name, public office
address, title and salary must in my view be maintained and made available.

Based upon the direction provided by the Freedom of Information
Law and the courts, I believe that other records reflective of payments made
to public employees are available. For instance, insofar as W-2 forms of
public employees indicate gross wages, they must be disclosed. In
conjunction with the previous commentary 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. However, for reasons discussed earlier, those
portions indicating public officers' or employees' names and gross wages must
in my view be disclosed. 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).

It is further noted that a recent amendment to the Education Law
specifies that certain information relating to administrators must be disclosed
as part of a school district's proposed budget, which is characterized in §1716
of the Education Law as the "Estimated expenses for ensuing year."
Subdivision (4) of that statute states in relevant part that:

"The board of education shall append to the
statement of estimated expenditures a detailed
statement of the total compensation to be paid
to the superintendent of schools, and any
assistant or associate superintendents of
schools in the ensuing school year, including a
delineation of the salary, annualized cost of
benefits and any in-kind or other form of
remuneration. The board shall also append a
list of all other school administrators and
supervisors, if any, whose annual salary will be
eighty-five thousand or more in the school
year, with the title of their positions and annual
salary identified..."

Third, in view of the delays that you encountered, it is emphasized that
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)].

Lastly, your status as a journalist does not entitle you to a waiver of
fees, and it has been held that an agency may charge its established fees, even
if the applicant is indigent [see Whitehead v. Morgenthau, 552 NYS2d 518
(1990)].

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

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