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December 29, 1999

FOIL-AO-11878

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the facts presented in your
correspondence.

Dear Ms. Avampato:

As you are aware, I have received your letter of November 16. In your capacity as
shop steward for your union, you indicated that an employee informed you that a department
head routinely photocopies for his files the paychecks of the employees in his department, as
well as payroll stubs that include "savings and checking account transfers, loan payments,
garnishes, etc."

You have sought guidance on the matter "before approaching the department head
and asking him to cease what is apparently a long practice." From my perspective, unless the
department head has a need to acquire them in the performance of his official duties, he has
no right to review or obtain copies of various aspects of the records at issue. 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.

Pertinent to the matter is §87(2)(b), which states that agencies may 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, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital
Newspapers v. Burns, 67 NY 2d 562 (1986)].

Although tangential to your inquiry, I point out that §87(3)(b) of the Freedom of
Information Law states in relevant part that:

"Each agency shall maintain...

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

As such, a payroll record that identifies all officers or employees by name, public office
address, title and salary must be prepared to comply with the Freedom of Information Law.
Moreover, those items were determined to be available even before the enactment of the
Freedom of Information Law, for it was found that they:

"...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)].

Because it is clearly relevant to the duties of all public employees, a record identifying them
by name, public office address, title and salary must be maintained and made available to any
person.

Conversely, however, items that are irrelevant to the performance of one's official
duties ordinarily would result in an unwarranted invasion of personal privacy if disclosed. I
note that §89(7) of the Freedom of Information Law specifies that home addresses of public
employees need not be disclosed, and that it has been held that disclosure of social security
numbers would constitute an unwarranted invasion of privacy [see Seelig v. Sielaff, 201
AD2d 298 (1994)]. In two decisions, Matter of Wool (Supreme Court, Nassau County,
NYLJ, November 22, 1977) and Minerva v. Village of Valley Stream (Supreme Court,
Nassau County, May 20, 1981), the issue involved disclosure of information concerning the
manner in which public officers and employees choose to spend their money. In Wool, the
issue involved a request for a record indicating salaries of certain public employees, as well
as notations of deductions made for payment of union dues. The court held that salary
information is clearly available, but that the information involving the payment of union dues
could be withheld, stating that "[m]embership in the CSEA has no relevance to an employee's
on the job performance or to the functioning of his or her employer." In Minerva, the request
involved both sides of checks paid by a municipality to its attorney. While the court held that
the front side of the checks must be disclosed, it found that the backs of checks indicating
"how he disposes of his lawful salary or fees" could be withheld as an unwarranted invasion
of personal privacy.

In sum, while the names, titles and salaries of public employees are clearly available
to the public, the items to which you referred that are unrelated to the performance of public
employees' duties may, in my opinion and based on the judicial interpretation of the Freedom
of Information Law, be withheld on the ground that disclosure would constitute an
unwarranted invasion of personal privacy.

I hope that I have been of assistance.

RJF:tt