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March 2, 1999

Ms. Martha L. Weale
144 Fisher Place
Princeton, NJ 08540

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. Weale:

As you are aware, your letter of January 22 addressed to the Rochester regional office
of the Attorney General was forwarded to the Office of the State Comptroller, which in turn
forwarded your letter to the Committee on Open Government. As you may recall, the
Committee, a unit of the Department of State, is authorized to provide opinions concerning
the Freedom of Information Law.

You referred to your request "to inspect the Gross Wages only portion of the 1998
W-2 forms for Village employees/officials" that was denied by the Village of Addison. You
asked whether gross wage information pertaining to public officers and employees must be
disclosed. In this regard, I offer the following comments.

First, when a record is available in its entirely under the Freedom of Information Law,
any person has the right to inspect the record at no charge. However, there are often
situations in which some aspects of a record, but not the entire record, may properly be
withheld in accordance with the ground for denial appearing in §87(2). In that event, I do not
believe that an applicant would have the right to inspect the record. In order to obtain the
accessible information, upon payment of the established fee, I believe that the agency would
be obliged to disclose those portions of the records after having made appropriate deletions
from a copy of the record.

In this instance, I do not believe that you would have the right to inspect W-2 forms,
for they include information that you have no right to see. However, in conjunction with the
ensuing analysis, the portions of the forms containing names and gross wages must be
disclosed. The Village could in that circumstance seek payment of the requisite fee for
photocopies, which would be made available after the deletion of certain details (see Van
Ness v.Center for Animal Care and Control and the New York City Department of Health,
Supreme Court, New York County, January 28, 1999).

Second, with respect to rights of access, 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.

Pertinent to the matter 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 favoritism. 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,
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).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Clerk/Treasurer, Village of Addison