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November 1, 1999

FOIL-AO-11793

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

I have received your letter of September 17. In short, you have asked whether you
must disclose the home addresses of the County's employees to a public employee union.

From my perspective, the County has the ability to withhold the addresses. 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, it has been advised that the disclosure of home addresses would constitute
"an unwarranted invasion of personal privacy" [see §87(2)(b)]. 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,
Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 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 regarding membership in a union; also Seelig v. Sielaff, 201 AD2d 298 (1994)
regarding social security numbers]. In my view, a public employee's home address is largely
irrelevant to the performance of his or her duties.

Although tangential to the matter, I point out that one of the few instances in which
the Freedom of Information Law requires that an agency prepare a record involves payroll
information. Specifically, §87 (3) (b) of the law states that each agency shall maintain:

"a record setting forth the name, public office address, title and
salary of every officer or employee of the agency."

It is noted that the analogous provision in the Freedom of Information Law as originally
enacted [formerly Public Officers Law, §88 (1)(g) referred to a payroll record identifying
employees by name and address. That provision did not indicated which address, home or
public office address, should be disclosed. Having received questions and complaints
regarding the disclosure of home addresses of public employees, the "payroll provision" was
clarified by the Legislature in its repeal of the original statute and the enactment of the
current Freedom of Information Law in 1977, which became effective on January 1, 1978.
Again, the extant provision refers specifically to the "public office address", rather than the
"address", as in the original statute.

Third, as you indicated, §89 (7) states that:

"Nothing in this article shall require the disclosure of the home
address of an officer or employee, former officer or employee,
or of a retiree of a public employees' retirement system; nor
shall anything in this article require the disclosure of the name
or home address of a beneficiary of a public employees'
retirement system or of an applicant for appointment to public
employment; provided however, that nothing in this
subdivision shall limit or abridge the right of an employee
organization, certified or recognized for any collective
negotiating unit or an employer pursuant to article fourteen of
the civil service law, to obtain the name or home address of an
officer, employee or retiree of such employer, if such name or
home address is otherwise available under this article."

The language quoted above indicates in its initial clauses that the home addresses of present
and former public employees need not be disclosed under the Freedom of Information Law.
Further, although the last clause of the provision refers to rights of access to home addresses
by an employee organization, the cited provision grants such rights "if such name or home
address is otherwise available under this article." Since I do not believe that there is a right
to home addresses granted by "this article", it does not appear that a public employee union
has the right to obtain home addresses of employees under the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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