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FOI-AO-19088

                                                                                    November 20, 2013

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 which you requested an advisory opinion concerning “a Freedom of Information project being undertaken by The Journal News/lohud.com.”   The project, in brief, involves efforts to review government records “pertaining to the public costs of  paid disability leave for municipal firefighters and police officers under General Municipal Law 207-a and 207-c.”

            Requests were made to dozens of municipalities in Westchester, Rockland and Putnam Counties in June seeking the following regarding police officers and firefighters:

You wrote that most municipalities have been responsive to the request, but that others have denied access to the names of those who have been on disability leave on the ground that disclosure would violate the federal Health Insurance Portability and Accountability Act, also known as “HIPAA.”  Other reasons for denials of access involve contentions that disclosure would constitute “an unwarranted invasion of personal privacy” pursuant §§ 87(2)(b) and/or 89(2)(b) of the Freedom of Information Law (FOIL), as well as the prohibitions concerning  disclosure found in §50-a of the Civil Rights Law.

It is your view that disclosure would not result an unwarranted invasion of personal privacy, that neither HIPAA nor §50-a of the Civil Rights Law is  applicable, and because the Office of  the State Comptroller disclosed names of  all  municipal  employees receiving pensions in response to a  FOIL request, including detail “on whether the employee received a service or disability pension.”

From my perspective, the names of those public employees who are or have been on disability leave are accessible under the Freedom of Information Law.  In this regard, I offer the following comments.

As you are 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 (l) of the Law. 

The initial ground for denial,§87(2)(a), pertains to records that Aare specifically exempted from disclosure by statute.  Section 50-a of the Civil Rights Law, exempts certain records from disclosure, but in my opinion, not those that you requested. Section 50-a requires that an agency keep confidential those personnel records pertaining to a police officer that are "used to evaluate performance toward continued employment or promotion..."  In my view, there is nothing in records that you requested that involve an evaluation of performance.  In a decision by the Court of Appeals, the state's highest court, sustaining a denial of access to reprimands of police officers, the Court emphasized that:

"...when access to an officer’s personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law ' 50-a - - to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer.  We said as much in Matter of Prisoners= Legal Services (supra), when after describing the legislative purpose of section 50-a, we expressly stipulated that >records having remote or not potential use, like those sought in Capital Newspapers, fall outside the scope of the statute= (73 NY2d, at 33 [emphasis supplied]).  Thus, in Capital Newspapers v Burns, we upheld FOIL disclosure of a single police officer=s record of absences from duty for a specific month.  By itself, the information was neutral and did not contain any invidious implications capable facially of harassment or degradation of the officer in a courtroom.  The remoteness of any potential use of that officer=s attendance record for abusive exploitation freed the courts from the policy constraints of  Civil Rights Law ' 50-a, enabling judicial enforcement of the FOIL legislative objectives in that case@ [Daily Gazette v. City of  Schenectady, 93NY2d 145, 157-158 (1999)].

Because the kinds of records that you requested do not evaluate performance, and because those records are "neutral", '50-a of the Civil Rights Law would not in my opinion serve to authorize the Town to deny access.

Several judicial decisions, most notably, the case cited in Daily Gazette in the passage quoted above,  indicate that the records sought must be disclosed.  In Capital Newspapers v. Burns [67 NY2d 562 (1986)], the Court of Appeals unanimously affirmed a decision granting access to records indicating the days and dates of sick leave claimed by a named police officer.  Those documents might be found in the personnel file of a police officer or firefighter, but they are not the kind of records that fall within §50-a of the Civil Rights Law.

 Next, although §87(2)(b) of the Freedom of Information Law authorizes an agency 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.  First, 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.  Second, 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, supra]. 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].

Based upon the foregoing, it is clear in my view that records reflective of attendance or absence of public employees must be made available.  Similarly, records reflective of other payments, whether they pertain to overtime, or participation in work-related activities, for example, would be available, for those records in my view would be relevant to the performance of one's official duties.  As indicated earlier, Capital Newspapers v. Burns, supra, involved a request for records reflective of the days and dates of sick leave claimed by a particular municipal police officer, and in granting access, the Court of Appeals 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, duty rosters and similar documents, 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 attendance or absence must be disclosed, again, because the public has an economic and perhaps a public safety interest in obtaining those records and because the records relate to public employees' official duties.

With regard to disclosure of the names of police officers or firefighters who have been on disability leave, while I know of no decision that focuses directly on the issue, the mere indication that a public employee is or has been on disability is, in my view, no more intimate or personal than disclosure of days and dates of sick leave, which, again, were found to be accessible by the state’s highest court in Capital Newspapers.  Insofar as those kinds of records indicate the nature of an illness or disability, those entries, which are akin to medical details, may in my opinion be deleted.

With respect to HIPAA, that federal act generally pertains to medical and similar records maintained by a provider of medical services.  The “Privacy Rule” imposed by HIPAA applies only to “covered entities”, which are defined to include a health plan, a health care clearinghouse, and a health care provider that transmits any health information in electronic forms (see 45 CFR §§160, 162 and 164, particularly §160.103).  Only “protected health information”, which is defined as information relating to an individual’s physical or mental health, provision of health care, or payment of health care, falls within the scope of the regulations.

In the federal regulations dealing with “health plans”, 45 CFR 160.103 states in relevant part that:

“Individually identifiable health information is information that is a subset of health information, including demographic information collected from an individual and:

(1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse;

(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual…”

However, the same section of the regulations states that AProtected health information excludes individually identifiable health information in...(iii) Employment records held by a covered entity in its role as employer.”  Based on the foregoing, the fact that a public employee participates in a public employer sponsored health insurance plant does not constitute protected health information that is confidential under HIPAA.

Lastly, in consideration of 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 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.  That being said, in my opinion, the names of public employees who have claimed disability leave must be disclosed to comply with FOIL.

I hope that I have been of assistance.

Sincerely,

 

Robert. J Freeman
Executive Director