January 8, 2009
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.
As you are aware, I have received your letter and the materials attached to it. You wrote that your employer, the Malone Central School District, disclosed records pursuant to a request made under the Freedom of Information Law to your husband. You and he are involved in a divorce proceeding, and the District disclosed records that consist largely of items involving salary and wages paid. However, certain of the records also include your social security number, and it is your belief that “these District actions constitute an unwarranted invasion of [your] personal privacy.” That being so, you sought an opinion concerning “the legality of releasing this information under FOIL.”
In this regard, I offer the following comments.
First, 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.
In my opinion, the only relevant basis for denial regarding the information in question would be §87(2)(b), which authorizes an agency to withhold records or portions thereof to the extent that disclosure would constitute "an unwarranted invasion of personal privacy."
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., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977).
Items in the nature of salary, overtime payments and gross wages must, in my opinion, be
made available, for they are clearly relevant to the duties of a public employee. I point out further that one of the few instances in the Freedom of Information Law requiring that agencies “maintain” a particular record involves salaries. Section 87(3)(b) has long required that each agency “shall maintain...a record setting forth the name, public office address, title and salary of every officer or employee of the agency...”
On the other hand, a public employee's social security number is largely irrelevant to the performance of that person's duties. Consequently, I believe that an agency may withhold public employees' social security numbers on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Further, the same conclusion was reached by the Appellate Division in Matter of Seelig v. Sielaff, [201 AD2d 298 (1994)].
Second, even though a local government agency, i.e., a school district may withhold records or portions thereof, it is not obliged to do so, because the Freedom of Information Law is permissive. As stated by the Court of Appeals, "...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency's discretion to disclose such records...if it so chooses" [Capital Newspapers, v. Burns, 67 NY 2d 562, 567 (1986)].
Therefore, while I believe that the agency in question may withhold its employees' social security numbers, neither the Freedom of Information Law nor any other statute of which I am aware would currently prohibit that agency from disclosing its employees' social security numbers.
Lastly, a new law will become effective on January 1, 2010 that will generally prohibit government agencies in New York from disclosing social security numbers. Section 96-a of the Public Officers Law will provide in relevant part that:
“the state and its political subdivisions shall not do any of the following, unless required by law:
(a) Intentionally communicate to the general public or otherwise make available to the general public in any manner an individual’s social security account number.”
I hope that the foregoing serves to clarify your understanding and that I have been of assistance.
Robert J. Freeman
cc: Board of Education