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FOIL-AO-17085

 

                                                                                                March 27, 2008

 

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

            This is in response to your February 14, 2008 correspondence in which you transmit records pertaining to an appeal by the New York State United Teachers (NYSUT) subsequent to a denial of access to records rendered pursuant to the Freedom of Information Law.  It is our opinion that the records requested by NYSUT should be made available, at least in part.  In this regard, we offer the following comments.

            First, we note that the Freedom of Information Law pertains to agency records, and §86(3) of that statute defines the term “agency to mean:

"...any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

            While the status of charter schools may be somewhat unclear (i.e., as to whether they may by governmental, not-for-profit, or profit-making entities), the Legislature clearly intended that they be accountable to the public in a manner analogous to public schools, “agencies” that are unquestionably governmental in nature, for subdivision (1)(e) of §2854 of the Education Law specifies that charter schools shall be subject to both the Freedom of Information Law and the Open Meetings Law.  As such, charter schools are intended to comply with the same statutes requiring accountability and disclosure as public schools and school districts.  Accordingly, it is our opinion that the Freedom of Information Law apples to “agencies” and charter schools alike.

            Second, with certain exceptions, the Freedom of Information Law does not require an agency to create records.  Section 89(3) of the Law states in relevant part that:

"Nothing in this article [the Freedom of Information Law] shall be construed to require any entity to prepare any record not in possession or maintained by such entity except the records specified in subdivision three of section eighty-seven..."

            However, a payroll list of employees is included among the records required to be kept pursuant to "subdivision three of section eighty-seven" of the Law.  Specifically, that provision states in relevant part that:

"Each agency shall maintain...

(b) a record setting forth the name, public office address, title and salary of every officer or employee of the agency... "

            As such, a payroll record that identifies all officers or employees by name, public office address, title and salary must be “maintained” to comply with the Freedom of Information Law.  As originally enacted, the analogous provision in the Freedom of Information Law (formerly Public Officers Law §88(1)(g)] referred to a payroll record identifying employees by name and address.  That provision did not indicate which address, either home or public office, should be disclosed.  Having received questions and complaints regarding the disclosure of the home address of public employees, the “payroll provision” was clarified by the Legislature in 1977, and has long referred specifically to the “public office address” of public officers and employees.

            Third, it has been advised that the disclosure of home addresses and home telephone numbers would constitute “an unwarranted invasion of personal privacy” [see §87(2)(b)].  While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers employees.  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, with regard to records pertaining to public officers and employees, the courts have found that, as a general rule, records that are relevant to the performance of a 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, 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., Seelig v. Sielaff, 201 AD2d 298 (1994) regarding social security numbers]. In our view, a public employee’s home address and home telephone numbers are largely irrelevant to the performance of his or her duties.

            Finally, §89 (7) states that:

“Nothing in this article shall require the disclosure of the home address of an officer or employee, former officer or employee, or of a retiree of a public employees’ retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees’ retirement system or of an applicant for appointment to public employment; provided however, that nothing in this subdivision shall limit or abridge the right of an employee organization, certified or recognized for any collective negotiating unit or an employer pursuant to article fourteen of the civil service law, to obtain the name or home address of an officer, employee or retiree of such employer, if such name or home address is otherwise available under this article.”

            The language quoted above indicates in its initial clauses that the home addresses of present and former public employees need not be disclosed under the Freedom of Information Law.  Further, although the last clause of the provision refers to rights of access to home addresses by an employee organization, the cited provision grants such rights “if such name or home address is otherwise available under this article.”  Since we do not believe that there is a right to home addresses granted by “this article”, it does not appear that a public employee union has the right to obtain home addresses of employees under the Freedom of Information Law.

            On behalf of the Committee on Open Government, we hope this is helpful of you.

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:tt

cc: Ms. Marilyn Raskin-Ortiz