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June 4, 2001
FOIL-AO-12699

TO:

FROM: Robert J. Freeman, Executive Director

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

As you are aware, I have received your letter in which you sought an advisory opinion
concerning a denial of your request for records indicating vacation accruals pertaining to correction
officers at the Elmira Correctional Facility. You added that you are "disturbed that a Grade 9,
Keyboard Specialist, is acting as FOIL Officer" for the facility and that "her responses are by
direction from Building #2 in Albany." That being so, you questioned "why...there is an appeal to
Albany."

In this regard, I offer the following comments.

First, the regulations promulgated by the Committee on Open Government (21 NYCRR Part
1401) require that the head or governing body of each agency designate one or more persons as
"records access officer." The records access officer has the duty of coordinating an agency's
response to requests for records. There is nothing in the Freedom of Information Law or the
Committee's regulations that focuses on the qualifications of a records access officer or those who
may assist the records access officer in carrying out his or her duties. The records access officer in
my view clearly has the authority, and perhaps the obligation in some instances, to consult with
others in an effort to ensure compliance with law.

With respect to your question relating to the appeal process, so long as the person designated
to determine appeals does not engage in a direct role in dealing initially with a request, I believe that
an agency would be acting in compliance with law.

Second, with respect to the substance of your request, based on a decision rendered by the
state's highest court, the Court of Appeals, records or portions of records indicating a public
employee's attendance, including those portions reflective of the use or accrual of vacation or sick
leave, for example, must be disclosed.

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." One such provision, §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 or correction officer that are "used to evaluate performance toward continued employment
or promotion..." In my view, there is nothing in records indicating vacation accruals that involves
an evaluation of performance. In a decision in which, the Court of Appeals sustained a denial of
access to reprimands of police officers, 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 records reflective of vacation accruals 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.

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 correction officer. Those documents,
like those that you requested, might be found in a correction 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.

Section 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",
and the courts have provided substantial direction regarding the privacy of public employees.
According to those decisions, 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. 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].

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 leave used or accrued 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 must be
disclosed under the Freedom of Information Law.

I hope that I have been of assistance.

RJF:tt

cc: Records Access Officer, Elmira Correctional Facility