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FOIL-AO-16649

 

July 9, 2007

Dear

I have received your letter in which you appealed a denial of access to the payment requisitions and a certified payroll that includes names and addresses of employees of a company with which the Mineola School District has contracted.

In this regard, the Committee on Open Government is authorized to provide advice and opinions pertaining to the Freedom of Information Law. The Committee is not empowered to determine appeals. The provision concerning the right to appeal a denial of access to records, §89(4)(a), 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 thereof 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 record the reasons for further denial, or provide access to the record sought. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal and the ensuing determination thereon."

With respect to your request, I point out that 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 (j) of the Law.

If my understanding of the matter is accurate, the payment requisitions 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 private company’s employees’ names, addresses and social security numbers, I believe that those 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 the Appellate Division 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.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Donna Martillo, District Clerk