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April 25, 2001

 

FOIL-AO-12640

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

I have received your letter of March 15 and the materials attached to it.

According to the materials, you requested from the Department of Public Works of the City
of Buffalo:

"1). Pencil copies of all invoices submitted to Trautman Associates
for payment for each contractor.

2). Each contractors respective Testing Agency and copies of all
their load tickets and test reports."

In addition, you requested copies of certain "minority status reports/EEO and certified payrolls." In
response to the request, you were informed that "due to impending litigation, all requests for
information...should be forwarded through your attorney."

It is your view that you have "been denied [y]our constitutional rights under the Freedom of
Information Law" and inquired "as to [y]our next step in obtaining the requested information."
From my perspective, although the Freedom of Information Law involves statutory rather than
constitutional rights, the City is required to respond to your requests, notwithstanding the pendency
of litigation. In this regard, I offer the following comments.

The possibility that the records sought might be pertinent to or used in litigation is, in my
view, largely irrelevant. As stated by the Court of Appeals, the State's highest court, in a case
involving a request made under the Freedom of Information Law by a person involved in litigation
against an agency: "Access to records of a government agency under the Freedom of Information
Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or
potential litigation between the person making the request and the agency" [Farbman v. NYC Health
and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of
Appeals determined that "the standing of one who seeks access to records under the Freedom of
Information Law is as a member of the public, and is neither enhanced...nor restricted...because he
is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The
Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information
Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules.
Specifically, it was found that:

"FOIL does not require that the party requesting records make any
showing of need, good faith or legitimate purpose; while its purpose
may be to shed light on governmental decision-making, its ambit is
not confined to records actually used in the decision-making process
(Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d
575, 581.) Full disclosure by public agencies is, under FOIL, a public
right and in the public interest, irrespective of the status or need of the
person making the request.

"CPLR article 31 proceeds under a different premise, and serves quite
different concerns. While speaking also of 'full disclosure' article 31
is plainly more restrictive than FOIL. Access to records under CPLR
depends on status and need. With goals of promoting both the
ascertainment of truth at trial and the prompt disposition of actions
(Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is
at the outset limited to that which is 'material and necessary in the
prosecution or defense of an action'" [see Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would not, in my opinion, affect either
the rights of the public or a litigant under the Freedom of Information Law. Further, it appears that
the records sought were prepared in the ordinary course of business. If that is so, again, the pendency
of litigation would not, in my view, affect your right to seek or obtain the records under the Freedom
of Information Law.

Second, 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.

If my understanding of the matter is accurate, the invoices that you requested must be
disclosed, for none of the grounds for denial would be applicable.

Insofar as the payroll records at issue include a contractor's employees' names, addresses,
social security numbers and their wages, I believe that portions of those records could properly be
withheld pursuant to §87(2)(b). That provision permits an agency to withhold records or portions
thereof when disclosure would constitute "an unwarranted invasion of personal privacy." Section
89(2)(a) authorizes an agency to delete identifying details to protect against an unwarranted invasion
of personal privacy when it makes records available. In addition, §89(2)(b) includes a series of
examples of unwarranted invasions of personal privacy, one of which pertains to:

"disclosure of information of a personal nature when disclosure
would result in economic or personal hardship to the subject party
and such information is not relevant to the work of the agency
requesting or maintained it...[§89(2)(b)(iv)].

In my opinion, what is relevant to an agency is whether the employees are being paid in accordance
with prevailing wage standards; their names, addresses and social security numbers are largely
irrelevant to that issue and may in my view be deleted to protect against an unwarranted invasion of
personal privacy.

It is noted that an Appellate Division decisions affirmed the findings of the Supreme Court
in a case involving a situation in which a union sought home addresses of an agency's contractors'
employees for the purpose of "monitoring and prosecution of prevailing wage law violations." The
court found that the employees' home addresses could be withheld, stating that the applicant's
"entitlement to access does not necessarily entitle it to the reports in their entirety. Indeed portions
of the report made available to petitioner should be expunged to protect (the) privacy of the
employees" [Joint Industry Board of the Electrical Industry v. Nolan, Supreme Court, New York
County, May 1, 1989; affirmed 159 AD 2d 241 (1990)].

In sum, while I believe that portions of the records reflective of the titles, duties, wages, hours
worked and similar data must be disclosed, disclosure of personally identifiable details pertaining
to a contractor's employees may in my view be deleted or redacted from the records prior to
disclosure.

Lastly, when a request is denied, the person seeking the records may appeal the denial in
accordance with §89 (4)(a) of the Freedom of Information Law. That provision 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
of the entity, or the person therefor designated by such 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 records the reasons for further denial, or provide access
to the record sought."

It is suggested that you contact the commissioner of the Department of Public Works or the Office
of the Corporation Counsel to ascertain the identity of the person or body to whom an appeal may
be made.

In an effort to enhance compliance with and understanding of the Freedom of Information
Law, copies of this opinion will be sent to City Officials.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Joseph N. Giambra
Michael Risman