March 28, 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.
I have received your letter and the material attached to it. Please accept my apologies for the delay in response.
In your capacity as Supervisor of the Town of Parma, you wrote that you requested “daily work reports” and a monthly vacation schedule from the Highway Superintendent concerning the employees of the Highway Department. The request was rejected by the Highway Superintendent, and your appeal to the Town Board resulted in a vote of 2 to 2, with one abstention.
From my perspective, the records at issue must be disclosed to any person in response to a request made pursuant to the Freedom of Information Law. In this regard, I offer the following comments.
First, although records might be in the physical possession of the Highway Superintendent, or in some cases, other Town officers or employees, according to §30 of the Town Law, all town records are in the legal custody of the Town Clerk. In a related vein, the regulations promulgated by the Committee on Open Government require the governing body of a municipality to designate at least one “records access officer.” The records access officer has the duty of coordinating an agency’s response to requests for records [see 21 NYCRR §1401.2]. In most towns, the clerk is the records access officer. If that is so in the Town of Parma, she would have the authority to acquire records requested under the Freedom of Information Law from any Town officer or employee and to review their content to determine the extent to which the law requires disclosure. Unless the Highway Superintendent has been designated as records access officer, I do not believe that he would have had the authority to deny your request.
Second, an attachment to your letter includes notes, apparently handwritten by the Town Clerk, indicating that he would not provide the records because they were “wanted for a purpose that the Supervisor has no jurisdiction over...” That the Supervisor may have no jurisdiction is irrelevant. It was held more than thirty years ago that when records are accessible under the Freedom of Information Law, they must be made equally available to any person, without regard to the status or interest of the person seeking the records [Burke v. Yudelson, 51 AD2d 673 (1976)].
Third, 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.
Most pertinent is §87(2)(b), which authorizes an agency, such as a town, to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." The courts have provided substantial direction regarding the privacy of public employees, and 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].
Capital Newspapers v. Burns, [67 NY2d 562 (1986)] involved a request for records reflective of the days and dates of sick leave claimed by a particular municipal employee, and in granting access, the state’s highest court 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.
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 daily work reports and employees’ vacation schedules are accessible under the Freedom of Information Law and available to you, as Supervisor, or to any member of the public.
I hope that I have been of assistance.
Robert J. Freeman
cc: Brian Speer, Highway Superintendent
Donna K. Curry, Town Clerk