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March 15, 1993

 

 

Mr. William Adams, Chairman
NYC Friends of Ferrets
P.O. Box 268 - Gracie Station
New York, NY 10028

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 Mr. Adams:

I have received your letter of March 1, which reached this
office on March 10.

Your correspondence relates to a response to a request for
records of the New York City Department of Health. Although
portions of certain records were disclosed, others were deleted,
including the site of dog bites, how bites occurred, the names of
health professionals who treated the wounds, and the home addresses
and salaries of public employees. Those items were deleted on the
grounds that some are confidential pursuant to §11.07 of the New
York City Health Code, because disclosure would constitute an
unwarranted invasion personal privacy, and because those items are
part of "intra and inter-agency documents.

You asked that the Committee "intervene and read these people
the riot act."

In this regard, it is emphasized that the Committee on Open
Government is authorized to provide advice concerning the Freedom
of Information Law. This office is not empowered to compel an
agency to grant or deny access to records or otherwise comply with
law. Nevertheless, I offer the following comments concerning the
issues that you raised.

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 section 87(2)(a) through (i) of the Law.

The first ground for denial, §87(2)(a), pertains to records
that "are specifically exempted from disclosure by state or federal
statute." One of the issues is whether §11.07 of the Health Code
constitutes a statute that would confer confidentiality.
Subdivision (a) of that provision confers confidentiality with
respect to reports and records of cases of "venereal disease, non-gonococcal urethritis, narcotics addiction, or drug abuse" and
states that such records "shall not be subject to subpoena or to
inspection by persons other than authorized personnel of the
Department." Subdivision (b) pertains to reports and records "of
carriers of diseases and conditions other than" those described in
subdivision (a) and states that those records are confidential with
respect to all but authorized personnel of the Department,
Corporation Counsel or the subject of such records of his legal
representative.

Here I point out that it has been held by several courts,
including the Court of Appeals, that agency's regulations or the
provisions of an administrative code or ordinance, for example, do
not constitute a "statute" [see e.g., Morris v. Martin, Chairman of
the State Board of Equalization and Assessment, 440 NYS 2d 365, 82
AD 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of
Parole, 385 NYS 2d 811 53 AD 405 (1976); Sheehan v. City of
Syracuse, 521 NYS 2d 207 (1987)]. For purposes of the Freedom of
Information Law, a statute would be an enactment of the State
Legislature or Congress. Therefore, if the New York City Health
Code was not enacted by the State Legislature, it would not
constitute a "statute" that exempts records from disclosure.
Conversely, if it was enacted by the State Legislature and includes
the records in question within its scope, the records would, in my
view, be specifically exempted from disclosure by statute.

Assuming that §11.07 is not a statute, I believe that rights
of access to the records in question would be governed by the
Freedom of Information Law. If the Freedom of Information Law
applies, it would appear that records involving incidence of animal
bites would be available, except to the extent disclosure would
constitute "an unwarranted invasion of personal privacy" in
accordance with §§87(20(b) and 89(2)(b) of the Freedom of
Information Law. Section 89(2)(b) provides a series of examples of
unwarranted invasion of personal privacy, the first two of which
specifically refer to medical histories and medical records.
However, the introductory language of that provision states that an
unwarranted invasion of personal privacy includes but shall not be
limited to the examples that follow. Therefore, although §89(2)
does not include specific reference to records involving animal
bites, I believe that such records or portions thereof may be
withheld in appropriate circumstances to protect privacy. In my
view, names of person bitten and other identifying details
pertaining to those persons could justifiably be withheld or
deleted from the records on the ground that disclosure would result
in an unwarranted invasion of personal privacy.

From my perspective, although the name, address, telephone
number or other personally identifiable details concerning a dog
bit victim could properly be withheld, the location of a dog bite
incident, a description of how the bite occurred and the name of a
health professional who provided treatment would be available. If
identifying details are deleted, those other items would be in my
opinion be available, for they would not identify the victim of a
dog bite.

With respect to §87(2)(g), that provision permits an agency to
withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

While the records in question could be characterized as
"intra-agency materials", I believe that they would consist solely
of factual information accessible under §87(2)(g)(i), unless a
different ground for denial could be asserted.

With regard to salary information I point out that, 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 eight-seven..."

However, a payroll list of employees is included among the records
required to be kept pursuant to "subdivision three of the 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 prepared
to comply with the Freedom of Information Law. Moreover, I believe
that the payroll record and other related records identifying
employees and their salaries, as well as attendance records, must
be disclosed.

Of relevance is §87(2)(b). As indicated earlier, that
provision permits an agency to withhold record or portions of
records when disclosure would result in "an unwarranted invasion of
personal privacy." However, payroll information has been found by
the courts to be available [see e.g., Miller v. Village of
Freeport, 379 NYS 2d 517, 51 AD 2d 765, (1976); Gannett Co. v.
County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NYS 2d 954 (1978)].
In Gannett, supra, the Court of Appeals held that the identities of
former employees laid off due to budget cuts, as well as current
employees, should be made available. In addition, this Committee
has advised and the courts have upheld the notion that records that
are relevant to the performance of the official duties of public
employees are generally available, for disclosure in such instances
would result in a permissible as opposed to an unwarranted invasion
of personal privacy [Gannett, supra; Capital Newspapers v. Burns,
Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, October 30,
1980; Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975);
and Montes v. State, 406 NYS 664 (Court of Claims 1978)]. As
states prior to the enactment of the Freedom of Information Law,
payroll records:

"...represent important fiscal as well as
operation information. The identity of the
employees and their salaries are vital
statistics kept in the proper recordation of
departmental functioning and are the primary
sources of protection against employment
favortism. They are subject therefore to
inspection" Winston v. Mangan, 338 NYS 2d 654,
664 (1972)].

In short, a record identifying agency employees by name, public
office address, title and salary must in my view be maintained and
made available.

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to Health Department Officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Steven J. Matthews
Patricia J. Caruso