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July 30, 1999

Mr. Patrick J. Amodeo
10 Harding Street
Albany, NY 12208

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. Amodeo:

I have received your letter of June 30 in which you sought an advisory opinion
concerning a response to your request under the Freedom of Information Law for certain
records of the City School District of Albany. Your request involved the following
information pertaining to the Superintendent and Deputy Superintendents:

"1. Copy of payroll records evidencing amount paid, amount
of deductions for health insurance and other benefits.

2. Information on any moneys paid to the School District
or directly to providers of health insurance benefits by either
individual at any time during the specified period."

In response to the request, you were supplied with amounts regarding moneys paid
to the District or health insurance providers by those holding the positions of your interest.
However, the payroll records indicating amounts paid or deducted for health insurance and
other benefits were found to be "confidential."

From my perspective, some of the information was properly withheld; other aspects
of the records, however, should be disclosed. In this regard, I offer the following comments.

First, the Freedom of Information Law, in brief, 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.

It is noted that there is nothing in the Freedom of Information Law that deals
specifically with personnel records or personnel files. Further, the nature and content of so-
called personnel files may differ from one agency to another, and from one employee to
another. In any case, neither the characterization of documents as "personnel records" nor
their placement in personnel files would necessarily render those documents "confidential" or
deniable under the Freedom of Information Law (see Steinmetz v. Board of Education, East
Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980). On the contrary, the contents of
those documents serve as the relevant factors in determining the extent to which they are
available or deniable under the Freedom of Information Law.

The provision in the Freedom of Information Law of most significance concerning the
information in question is, in my view, §87(2)(b). That provision permits an agency to
withhold records to the extent that disclosure would constitute "an unwarranted invasion of
personal privacy".

While the standard concerning privacy is flexible and may be subject to conflicting
interpretations, the courts have provided substantial direction regarding the privacy of public
officers employees. It is clear that public officers and employees enjoy a lesser degree of
privacy than others, for it has been found in various contexts that public officers and
employees are required to be more accountable than others. Further, with regard to records
pertaining to public officers and employees, the courts have found that, as a general rule,
records that are relevant to the performance of a their official duties are available, for
disclosure in such instances would result in a permissible rather than an unwarranted invasion
of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975);
Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978);
Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C.
Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406
NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989);
Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz
v. Board of Education, East Moriches, supra; Capital Newspapers v. Burns, 109 AD 2d 292
(1985) aff'd 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to
the performance of one's official duties, it has been found that disclosure would indeed
constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct.,
Nassau Cty., NYLJ, Nov. 22, 1977].

It is noted that in Matter of Wool, the applicant requested a list of employees of a
town "whose salaries were subject to deduction for union membership dues payable to Civil
Service Employees Association...". In determining the issue, the Court held that:

"...the Legislature has established a scale to be used by a
governmental body subject to the 'Freedom of Information
Law' and to be utilized as well by the Court in reviewing the
granting or denial of access to records of each governmental
body. At one extreme lies records which are 'relevant or
essential to the ordinary work of the agency or municipality'
and in such event, regardless of their personal nature or
contents, must be disclosed in toto. At the other extremity are
those records which are not 'relevant or essential' - which
contain personal matters wherein the right of the public to
know must be delicately balanced against the right of the
individual to privacy and confidentiality.

"The facts before this Court clearly are weighted in favor of
individual rights. Membership or non-membership of a
municipal employee in the CSEA is hardly necessary or
essential to the ordinary work of a municipality. 'Public
employees have the right to form, join and participate in, or to
refrain from forming, joining or participating in any employee
organization of their choosing.' Membership in the CSEA has
no relevance to an employee's on-the-job performance or to
the functioning of his or her employer."

Consequently, it was held that portions of records indicating membership in a union
could be withheld as an unwarranted invasion of personal privacy. Based on the Wool
decision, it might be contended that whether a public employee is covered by a health
insurance has no relevance to the performance of that person's official duties, and that,
therefore, such information may be withheld.

From my perspective, such a conclusion would be overly restrictive. In Capital
Newspapers v. Burns, supra, the issue involved records reflective of the days and dates of sick
leave claimed by a particular police officer. The Appellate Division, as I interpret its decision,
held that those records were clearly relevant to the performance of the officer's duties, for the
Court 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..." [109 AD 2d 92,
94-95 (1985)].

Perhaps more importantly, in a statement concerning the intent and utility of the Freedom of
Information Law, the Court of Appeals affirmed the holding of the Appellate Division and
added that:

"The Freedom of Information Law expresses this State's
strong commitment to open government and public
accountability and imposes a broad standard of disclosure
upon the State and its agencies (see, Matter of Farbman &
Sons v New York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance of the public's
vested and inherent 'right to know', affords all citizens the
means to obtain information concerning the day-to-day
functioning of State and local government thus providing the
electorate with sufficient information 'to make intelligent,
informed choices with respect to both the direction and scope
of governmental activities' and with an effective tool for
exposing waste, negligence and abuse on the part of
government officers" (Capital Newspapers v. Burns, supra,
565-566).

Based on the foregoing, it might appropriately be contended that the need to enable
the public to make informed choices and provide a mechanism for exposing waste or abuse
must be balanced against the possible infringement upon the privacy of a public officer or
employee. The magnitude of an invasion of privacy is conjectural and must in many instances
be determined subjectively. In the context of your request, if a court found the invasion of
one's privacy to be substantial, it might be determined that the interest in protecting privacy
outweighs the interest in identifying employees receiving coverage. It is possible, too, that
a court could find that the identities of employees receiving coverage should be disclosed, but
that the cost of coverage, by named employee, thereby indicating the nature of coverage (i.e.,
individual as opposed to family coverage) may be withheld, and that the cost of coverage
should be disclosed generically. On the other hand, in conjunction with the direction provided
by the Court of Appeals in the passage quoted earlier, it might be determined that the
information sought should be disclosed in its entirety in view of the public's significant interest
in knowing how public monies are being expended.

In consideration of the factors that have been discussed, it is my view that a disclosure
indicating that a public officer or employee is covered by a health insurance plan at public
expense would not represent or reveal an intimate detail of one's life. Arguably, the record
reflective of the dates of sick leave claimed by a public employee found by the courts to be
available represents a more intimate or personal invasion of privacy. However, if a disclosure
of the cost of coverage for a particular employee indicates which plan that person has chosen
or whether his or her plan involves individual or dependent coverage, such a disclosure may
potentially result in the revelation of a number of details of a person's life and an unwarranted
invasion of personal privacy. For instance, an indication of cost might reveal whether the
coverage involves medical treatment routinely provided by a clinic, as opposed to a primary
care physician; it also may indicate the nature of coverage, i.e., whether coverage is basic or
includes catastrophic care. Again, the cost may also reveal whether coverage is for an
employee alone or for that person's family or dependents.

Most appropriate in my opinion would be a disclosure of costs of health care coverage
by category in terms of plans that are offered or available to officers or employees. However,
in conjunction with the preceding commentary, I do not believe that the District would be
required to disclose the type of coverage an officer or employee has chosen or which specific
dependents are covered under the plan.

Other elements of the records sought reflective of benefits must in my opinion
generally be disclosed. If, for example, the District pays for a life insurance policy, the use
of a vehicle, a home computer or online service, home telephone, etc., those kinds of benefits,
unlike the choice of health insurance coverage, would not represent a potentially intimate
detail of one's life. For that reason, I believe that those kinds of details must be disclosed.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: John J. Paolino