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FOIL-AO-13727

November 26, 2002

 

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 in which you sought an advisory opinion concerning your request
for records of the Office of the Bronx Borough President.

You requested from that agency "the names of any and all former employees who had been
terminated or voluntarily left the employment of the agency but who remained on agency payroll
through the use of accrued leave balances during the period January 1, 2000 through February 20,
2002." Having been Counsel at the agency, you added that "[t]hese records are readily available and
in the direct custody and possession of the agency." Although some of the information sought was
disclosed in a "generic" manner, the names of the employees were withheld on the ground that
disclosure would constitute "an unwarranted invasion of personal privacy." You also indicated that
you were asked to "specify how the names of the individuals would be used as a precondition to the
release of public records..."

In this regard, I offer the following comments.

First, I do not believe that you could be compelled, as a condition precedent to disclosure,
to indicate the purpose of your request or the intended use of the records. As as a general matter,
when records are accessible under the Freedom of Information Law, it has been held that they should
be made equally available to any person, regardless of one's status, interest or the intended use of the
records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)].
Moreover, the Court of Appeals, the State's highest court, has held 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 government 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" [Farbman v. New York City Health and
Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the use of the records, including the potential for commercial use or the status of the applicant, is in my opinion irrelevant.

The only exception to the principles described above involves the protection of personal
privacy. By way of background, §87(2)(b) of the Freedom of Information Law permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Further, §89(2)(b) of the Law provides a series of examples of unwarranted invasions of personal privacy, one of which pertains to:

"sale or release of lists of names and addresses if such lists would be
used for commercial or fund-raising purposes" [§89(2)(b)(iii)].

The provision quoted above represents what might be viewed as an internal conflict in the law. As
indicated earlier, the status of an applicant or the purposes for which a request is made are irrelevant
to rights of access, and an agency cannot inquire as to the intended use of records. However, due
to the language of §89(2)(b)(iii), rights of access to a list of names and addresses, may be contingent
upon the purpose for which a request is made [see Scott, Sardano & Pomeranz v. Records Access
Officer of Syracuse, 65 NY 2d 294, 491 NYS 2d 289 (1985); Goodstein v. Shaw, 463 NYS 2d 162
(1983)].

In this instance, your request did not involve addresses and, consequently, I do not believe
that §89(2)(b)(iii) would be pertinent or that you could be compelled to indicate your intended use
of the records as a condition precedent to disclosure.

Second, as you are likely aware, 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.

Relevant with respect to rights of access is the provision to which reference was made earlier,
§87(2)(b) concerning unwarranted invasions of personal privacy. Although that standard is flexible and subject to a variety of interpretations, the courts have provided direction through their review of challenges to agencies' denials of access. In brief, it is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public officers and employees are required to be more accountable than others. Further, it has been held that, as a general rule, records that are relevant to their 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); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, supra; 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].

In the context of the records at issue, records of payments to public employees have been
found to be available in a variety of contexts. That payments may be related to the accrual of leave, is in my opinion, irrelevant. For example, in one of the few instances in which the Freedom of Information Law requires that a record be kept by an agency, §87(3)(b) specifies that each agency "shall maintain....a record setting forth name, public office address, title and salary of every officer or employee of the agency." Records of that nature have long been found to be accessible by the courts [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)]. As stated prior to the enactment of the Freedom of Information Law, payroll records:

"...represent important fiscal as well as operational 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.

Similarly, based upon the direction provided by the Freedom of Information Law and the
courts, I believe that other records reflective of payments made to public employees are available.
For instance, insofar as W-2 forms of public employees indicate gross wages, they must be disclosed.
In conjunction with the previous commentary concerning the ability to protect against unwarranted invasions of personal privacy, I believe that portions of W-2 forms could be withheld, such as social security numbers, home addresses and net pay, for those items are largely irrelevant to the performance of one's duties. However, for reasons discussed earlier, those portions indicating public officers' or employees' names and gross wages must in my view be disclosed. That conclusion has been reached judicially, and the court cited an advisory opinion rendered by this office in so holding (Day v. Town of Milton, Supreme Court, Saratoga County, April 27, 1992).

In a case involving a request for copies of checks payable to a municipal attorney, although
the front side of cancelled checks were found to be public, it was held that the back of the checks
may be withheld on the ground that disclosure would result in an unwarranted invasion of personal privacy. The court found, in essence, that inspection of the back of a check could indicate how an individual chooses to spend his or her money, which is irrelevant to the performance of that person's duties(see Minerva v. Village of Valley Stream, Supreme Court, Nassau County, May 20, 1981).

In conjunction with the preceding remarks concerning access to records, I direct you to a
statement concerning the intent and utility of the Freedom of Information Law, the Court of Appeals, the State's highest court, 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 foregoing, I believe that the need to enable the public to make informed choices
and provide a mechanism for exposing waste, favortism or abuse can be balanced against the
possible infringement upon the privacy of present or former public officers or employees in a manner consistent with the preceding commentary. I believe, too, that the judicial construction of the Freedom of Information Law clearly indicates that the names of those who are the subject of the records sought must be disclosed. As suggested above, disclosure, based on those decisions, would constitute a permissible rather than an unwarranted invasion of personal privacy

Lastly, a search has been conducted to determine whether the Office of the Borough President
transmitted copies of your appeal and the determination that followed to this office as required by
§89(4)(a) of the Freedom of Information Law. Since no such records were located, it appears that the Office failed to comply with that provision.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm
cc: Ellie Jurado