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  June 11, 1999

 

Mr. A. Stephen Corina
1526 Hawthorne Street
Schenectady, NY 12303

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. Corina:

I have received your letter of June 12 in which you sought assistance in obtaining the
time cards of an employee of Schenectady County. Based on the Freedom of Information
Law and its judicial interpretation, the records in question must, in my view, be disclosed.

In this regard, I offer the following comments.

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.

Although two of the grounds for denial relate to attendance records or time sheets,
neither in my opinion would justify a denial of access.

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.

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

Also relevant 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."
This office 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 Co. v. County of Monroe, 59 AD2d 309 (1977), aff'd
45 NY2d 954 (1978); 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)].

With regard to time sheets or attendance records, in a decision pertaining to a
particular police officer and records indicating the day and dates he claimed as sick leave,
which was affirmed by the State's highest court, it was found, in essence, that disclosure
would result in a permissible rather than an unwarranted invasion of personal privacy.
Specifically, the Appellate Division found that:

"One of the most basic obligations 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, supra, 94-95).

Insofar as attendance records or time sheets include reference to reasons for an
absence, it has been advised that an explanation of why sick time might have been used, i.e.,
a description of an illness or medical problem found in records, could be withheld or deleted
from a record otherwise available, for disclosure of so personal a detail of a person's life
would likely constitute an unwarranted invasion of personal privacy and would not be relevant
to the performance of an employee's duties. A number, however, which merely indicates the
amount of sick time or vacation time accumulated or used, or the dates and times of
attendance or absence, would not in my view represent a personal detail of an individual's life
and would be relevant to the performance of one's official duties. Therefore, I do not believe
that §87(2)(b) could be asserted to withhold that kind of information contained in an
attendance record.

In sum, I believe that time sheets, attendance and similar records pertaining to public
employees must be disclosed, subject to the qualifications described above.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this opinion will be sent to County officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Joseph Parillo, Jr., Clerk of the Legislature
Thomas Hayner, County Attorney