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July 26, 2000

FOIL-AO-12224

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 20, as well as the materials attached to it. You
indicated that you appealed a denial of access to records by the Suffolk County Department
of Civil Service on May 7, but that, as of the date of your letter to this office, you had
received no response. You asked what "the guidelines [are] if an agency does not respond to
an appeal." Additionally, you sought my opinion concerning your right to obtain the records,
specifically, records relating to leaves of absences granted to certain employees of the Town
Brookhaven, including the reasons for the leaves and the dates for which the leaves were
granted.

In this regard, I offer the following comments.

First, §89(4)(a) of the Freedom of Information Law pertains to right to appeal a denial
of a request for records and states in relevant part that:

"...any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive, or
governing body, who shall within ten business days of the
receipt of such appeal fully explain in writing to the person
requesting the record the reasons for further denial, or provide
access to the record sought."

It has been held that when an appeal is made but a determination is not rendered within ten
business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may
initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice
Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

Second, from my perspective, those portions of records reflective of the dates for
which leave was granted would clearly be accessible; other aspects of the records containing
the reasons for seeking leave may or may not be available, depending on the nature of the
reasons.

By way of background, 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. In my view, two of the grounds for denial are
pertinent to an analysis of rights of access.

Of significance is §87(2)(g), which permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits
performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While
inter-agency or intra-agency materials may be withheld, portions of such materials consisting
of statistical or factual information, instructions to staff that affect the public, final agency
policy or determinations or external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those portions of inter-agency or
intra-agency materials that are reflective of opinion, advice, recommendation and the like
could in my view be withheld.

The records at issue would consist of inter-agency or intra-agency material.
However, portions reflective of dates or figures concerning the times that employees arrive at
or leave work, or for which a leave of absence was granted would constitute "statistical or
factual" information accessible under §87(2)(g)(i).

Also relevant is §87(2)(b), which permits an agency to withhold record or portions of
records when disclosure would result in "an unwarranted invasion of personal privacy." This
office 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 Co. v. County of Monroe, 59 AD2d 309 (1977), aff'd 45 NY2d
954 (1978); 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)].

In a decision pertaining to a particular police officer and records indicating the day
and dates he claimed as sick leave, which was affirmed by the State's highest court, it was
found, in essence, that disclosure would result in a permissible rather than an unwarranted
invasion of personal privacy. Specifically, the Appellate Division found that:

"One of the most basic obligations of any employee is to
appear for work when scheduled to do so. Concurrent with this
is the rights of an employee to properly use sick leave available
to him or her. In the instant case, intervenor had an obligation
to report for work when scheduled along with a right to use
sick leave in accordance with his collective bargaining
agreement. The taxpayers have an interest in such use of sick
leave for economic as well as safety reasons. Thus it can
hardly be said that disclosure of the dates in February 1983
when intervenor made use of sick leave would constitute an
unwarranted invasion of privacy. Further, the motives of
petitioners or the means by which they will report the
information is not determinative since all records of
government agencies are presumptively available for inspection
without regard to the status, need, good faith or purpose of the
applicant requesting access..." (Capital Newspapers v. Burns,
supra, 94-95).

Although the decision cited above dealt with the dates for which sick leave was
claimed, the principle, in my view, would be equally applicable here, that the public has the
right to obtain records indicating the dates for which leaves of absence were granted or used.

With respect to the reasons for leave, if a leave of absence was requested for medical
reasons, for example, I believe that a disclosure of that information would constitute an
unwarranted invasion of personal privacy and that a denial of access would be appropriate.
In short, in situations in which the reason for seeking leave may be intimate or personal, I
believe that it may be withheld. In others, depending on the nature of the reason, it is
possible that disclosure may be required.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Florence Dimino, Department of Civil Service
Derrick Robinson, Office of the County Attorney