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November 29, 1999

 

FOIL-AO-11833

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. Balen:

I have received your letter of October 19, as well as the materials attached to it.

In your capacity as a member of the Board of Education of the Lackawanna City
School District, you have sought assistance concerning your efforts in obtaining various
records, particularly a "break down of work periods showing whether employees worked or
not and overtime received, if any", and those indicating "how much in District funds were
spent" in relation to a certain grievance proceeding. In response to the request, you were
informed that the records are "considered part of the employee's personnel records" and that
the Commissioner's regulations "provide that any board member may request that personnel
records be examined by the board in executive session, but only for inspection and use in the
deliberation of specific matters before the board."

From my perspective, the Superintendent's statement concerning the use of the
records by board members is somewhat overbroad. More importantly, however, I believe
that the regulations are inconsistent with the Freedom of Information Law and are, therefore,
invalid to the extent of such inconsistency. In short, under those regulations, a member of a
board of education would apparently have a lesser right of access to items characterized as
"personnel records" than the public generally. In this regard, I offer the following comments.

First, the Freedom of Information Law does not distinguish among applicants for
records, and it has been held that when records are accessible under that statute, they must be
made equally available to any person, notwithstanding one's status or interest [Burke v.
Yudelson, 51 AD2d 673 (1976)]. When one seeks records under the Freedom of Information
Law, that person enjoys rights accorded to the public generally [Farbman v. New York City,
62 NY2d 75 (1984)]. In the context of your inquiry, when you seek records under the
Freedom of Information Law, I believe that you would have the same rights as any member
of the public, despite your status as a member of the Board of Education.

Second, in brief, 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.

Part 84 of the Commissioner's regulations, which deals with access to employees
personnel records by boards of education and their members, provides as follows:

"§84.1 Right of access by school board members

A board of education shall have right of access to personnel
records of employees of the district, subject to the procedures
hereinafter set forth.

§84.2 Procedures to obtain access.

Examination of school employee personnel records by the
board of education shall be conducted only at executive
sessions of the board. Any board member may request the
chief school officer to bring the personnel records of a
designated employee or employees to an open meeting of the
board. The board shall then determine whether to conduct an
executive session for the purpose of examining such records.
The chief school officer shall present such records to the board
at the executive session. Such records shall, in their entirety,
be returned to the custody of the chief school officer at the
conclusion of the executive session of the board.

§84.3 Purposes and use.

Information obtained from employee personnel records by
members of the board of education shall be used only for the
purpose of aiding the members of the board to fulfill their legal
responsibilities in making decisions in such employee
personnel matters as appointments, assignments, promotions,
demotions, remuneration, discipline, or dismissal, or to aid in
the development and implementation of personnel policies, or
such other uses as are necessary to enable the board to carry out
legal responsibilities."

According to judicial decisions, an agency's regulations may not render records
deniable or confidential, unless there is a basis for so doing pursuant to one or more of the
grounds for denial appearing in the Freedom of Information Law.

The first ground for denial in the Freedom of Information Law, §87 (2)(a), refers to
records that may be characterized as confidential and enables an agency to withhold records
that "are specifically exempted from disclosure by state or federal statute." A statute, based
upon judicial interpretations of the Freedom of Information Law, is an act of the State
Legislature or congress [see Sheehan v. city of Syracuse, 521 NYS 2d 207 (1987)], and it has
been found that agencies' regulations are not equivalent of statutes for purposes of §87 (2)(a)
of the Freedom of Information Law [see Zuckerman v. NYS Board of Parole, 385 NYS 2d
811, 53 AD 2d 405 (1976); Morris v. Martin, Chairman of the State Board of Equalization
and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982) ].
Therefore, insofar as the Department's regulations render records or portions of records
deniable in a manner inconsistent with the Freedom of Information Law or some other
statute, those regulations would, in my opinion, be invalid. The regulations cannot operate, in
my view, in a manner that provides you with fewer rights of access than the public at large.

Third, it is emphasized that there is nothing in the Freedom of Information Law that
deals specifically with personnel records or personnel files. 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 of most significance concerning the kinds of items at issue is, in my
view, §87(2)(b), which 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 those persons, 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, 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].

Based upon the foregoing, it is clear in my view that records reflective of payments to
public employees must be made available, whether they pertain to overtime, or participation
in work-related activities, for those records in my view are relevant to the performance of
one's official duties. It is noted that one of the decisions cited above, Capital Newspapers v.
Burns, supra, involved a request for records reflective of the days and dates of sick leave
claimed by a particular municipal police officer. The Appellate Division found that those
records must be disclosed, and the Court of Appeals affirmed. The decision indicates that the
public has both economic and safety reasons for knowing whether public employees perform
their duties when scheduled to do so. As such, attendance records, including those involving
overtime work, are in my opinion clearly available, for they are relevant to the performance
of public employees' official duties. Similarly, I believe that records reflective of payment of
overtime must be disclosed, for the public has an economic interest in obtaining those records
and because the records are relevant to the performance of public employees' official duties.

In affirming the Appellate Division decision in Capital Newspapers, the Court of
Appeals found 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 preceding analysis, it is clear in my view that payroll, attendance and
similar records must be disclosed under the Freedom of Information Law.

Lastly, with respect to records indicating amounts of District expenditures, insofar as
those records exist, I believe that they must be disclosed, for none of the grounds for denial
would be pertinent.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this response will be forwarded to the Board of Education and the
Superintendent.

 

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Education
Nellie B. King, Superintendent