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January 26, 2000

FOIL-AO-11928

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 December 15 in which you raised issues concerning
rights of access to the payroll record required to be maintained pursuant to §87(3)(b) of the
Freedom of Information Law. You wrote that some agencies have suggested that the record
in question is not available if it is sought for a commercial purpose.

In this regard, I offer the following comments.

First, in terms of rights of access, 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.

With certain exceptions, the Freedom of Information Law is does not require an
agency to create records. Section 89(3) of the Law states in relevant part that:

"Nothing in this article [the Freedom of Information Law] shall
be construed to require any entity to prepare any record not in
possession or maintained by such entity except the records
specified in subdivision three of section eighty-seven..."

However, a payroll list of employees is included among the records required to be kept
pursuant to "subdivision three of section eighty-seven" of the Law. Specifically, that
provision 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, I believe that the payroll record described above must be disclosed for the
following reasons.

Pertinent to the matter is §87(2)(b) of the Freedom of Information Law, which
permits an agency to withhold record or portions of records when disclosure would result in
"an unwarranted invasion of personal privacy." However, payroll information has been found
by the courts to be available [see e.g., Miller v. Village of Freeport, 379 NYS 2d 517, 51 AD
2d 765, (1976); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NYS 2d
954 (1978)]. Miller dealt specifically with a request by a newspaper for the names and
salaries of public employees, and in Gannett, the Court of Appeals held that the identities of
former employees laid off due to budget cuts, as well as current employees, should be made
available. In addition, this Committee 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, supra; 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)]. As stated prior to the enactment of the Freedom of Information Law, payroll records:

"...represent important fiscal as well as operation 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 favortism. They are subject therefore to
inspection" Winston v. Mangan, 338 NYS 2d 654, 664 (1972)].

In short, a record identifying agency employees by name, public office address, title and
salary must in my view be maintained and made available.

Second, in general, the reasons for which a request is made or an applicant's potential
use of records are irrelevant, and it has been held that if records are accessible, they should be
made equally available to any person, without regard to status or interest [see e.g., M.
Farbman & Sons v. New York City. 642 NY 2d 75 (1984) and Burke v. Yudelson, 368 NYS
2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. However, §89(2)(iii) of the Freedom
of Information Law permits an agency to withhold "lists of names and addresses if such lists
would be used for commercial or fund-raising purposes" on the ground that disclosure would
constitute an unwarranted invasion of personal privacy. Due to the language of that
provision, the intended use of a list of names and addresses is relevant, and case law indicates
that an agency can ask why a list of names and addresses has been requested [see Goldbert v.
Suffolk County Department of Consumer Affairs, Sup. Ct., Suffolk Cty., (September 5,
1980).

Nevertheless, §89(6) of the Freedom of Information Law states that:

"Nothing in this article shall be construed to limit or abridge
any otherwise available right of access at law or in equity to
any party to records."

As such, if records are available as of right under a different provision of law or by means of
judicial determination, nothing in the Freedom of Information Law can serve to diminish
rights of access. In this instance, since the payroll information in question was found to be
available prior to the enactment of the Freedom of Information Law, I believe that it must be
disclosed, regardless of the intended use of the records. Consequently, in my view, the
payroll record required to be maintained should be disclosed to any person, irrespective of its
intended use.

Third, from my perspective, the provision dealing with lists of names and addresses is
intended to enable agencies to withhold lists that would be used to solicit individuals at their
residences. In the case of the payroll record, however, the residence address is not included;
rather the record includes the "public office address", the location where public employees
carry out their governmental duties. In my view, there is nothing "personal" or intimate
about the work location of a public employee, and that kind of information should be made
available on request.

Lastly, the Freedom of Information Law does not require that records be posted or
that an agency disseminate records on its own initiative. The agency's obligation, in my
opinion, involves disclosing records, on request, in accordance with applicable law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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