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July 10, 2000

FOIL-AO-12199

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 June 1, as well as the correspondence relating to it. You
wrote that, in your capacity as a member of the Board of Trustees of the Village of Lyons,
you requested records concerning "compensation time that has been accrued by all Village of
Lyons employees." All departments within the Village complied, except the Police
Department. The Chief of Police denied the request, stating that "a police officer's personnel
records are protected against such arbitrary request by the Civil Rights Law", and that "comp
time is part of an employee's attendance record and as such is part of the personnel file."

You have asked whether the Chief's position is consistent with law. From my
perspective, it is not. 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. The initial ground for denial,§87(2)(a),
pertains to records that "are specifically exempted from disclosure by statute." The provision
to which the Chief referred, §50-a of the Civil Rights Law, exempts certain records from
disclosure, but in my opinion, not those that you requested.

Section 50-a requires that an agency keep confidential those personnel records
pertaining to a police officer that are "used to evaluate performance toward continued
employment or promotion..." In my view, there is nothing in records indicating comp time
that involves an evaluation of performance. In the decision to which the Chief referred in a
letter to the Clerk-Treasurer, the Court of Appeals, the state's highest court, sustained a denial
of access to reprimands of police officers. However, the Court emphasized that:

"...when access to an officer's personnel records relevant to
promotion or continued employment is sought under FOIL,
nondisclosure will be limited to the extent reasonably
necessary to effectuate the purposes of Civil Rights Law § 50-a
- - to prevent the potential use of information in the records in
litigation to degrade, embarrass, harass or impeach the integrity
of the officer. We said as much in Matter of Prisoners' Legal
Services (supra), when after describing the legislative purpose
of section 50-a, we expressly stipulated that ‘records having
remote or not potential use, like those sought in Capital
Newspapers, fall outside the scope of the statute' (73 NY2d, at
33 [emphasis supplied]). Thus, in Capital Newspapers v
Burns, we upheld FOIL disclosure of a single police officer's
record of absences from duty for a specific month. By itself,
the information was neutral and did not contain any invidious
implications capable facially of harassment or degradation of
the officer in a courtroom. The remoteness of any potential use
of that officer's attendance record for abusive exploitation
freed the courts from the policy constraints of Civil Rights
Law § 50-a, enabling judicial enforcement of the FOIL
legislative objectives in that case" [Daily Gazette v. City of
Schenectady, 93NY2d 145, 157-158 (1999)].

Because the records reflective of comp time do not evaluate performance, and because those
records are "neutral", §50-a of the Civil Rights Law would not in my opinion serve to
authorize the Village to deny access to you or anyone else.

Second, several judicial decisions, most notably, the case cited in Daily Gazette in the
passage quoted above, indicate that the records sought must be disclosed. In Capital
Newspapers v. Burns [67 NY2d 562 (1986)], the Court of Appeals unanimously affirmed a
decision granting access to records indicating the days and dates of sick leave claimed by a
named police officer. Those documents, like those that you requested, might be found in a
police officer's personnel file, but they are not the kind of records that fall within the
coverage of §50-a of the Civil Rights Law.

While tangential to the matter, I point out that §87(3) 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..."

Although §87(2)(b) of the Freedom of Information Law authorizes an agency to
withhold records to the extent that disclosure would constitute "an unwarranted invasion of
personal privacy", the courts have provided substantial direction regarding the privacy of
public employees. First, it is clear that public employees enjoy a lesser degree of privacy
than others, for it has been found in various contexts that public employees are required to be
more accountable than others. Second, with regard to records pertaining to public
employees, the courts have found that, as a general rule, records that are relevant to the
performance of a public employee' s 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); 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].

Based upon the foregoing, it is clear in my view that records reflective of salaries of
public employees must be prepared and made available. Similarly, records reflective of other
payments, whether they pertain to overtime, or participation in work-related activities, for
example, would be available, for those records in my view would be relevant to the
performance of one's official duties. As indicated earlier, 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, and in granting access, the Court of Appeals found that
the public has both economic and safety reasons for knowing when public employees
perform their duties and whether they carry out those 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.

Lastly, 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 the records at issue are not
exempt from disclosure under the Civil Rights Law, but rather that they must be disclosed
under the Freedom of Information Law.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this opinion will be forwarded to Village officials, and it is
suggested that you raise the issue before the Board of Trustees.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Trustees
Chief Stephen Van Duyne
Diana Marro, Clerk-Treasurer