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April 5, 1993

 

Mr. David C. Woodward
140 Overlook Avenue
Peekskill, NY 10566

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. Woodward:

I have received your letter of March 21, as well as the
materials attached to it.

As a member of the Peekskill City School District, you
indicated that, on some occasions, you have had difficulty
acquiring information.

In this regard, I am unaware of any statute that deals
specifically with requests by members of boards of education for
school district records or any unique authority that board members
enjoy, individually, concerning their capacity to obtain copies of
district records.

With respect to the Freedom of Information Law, that statute
is, in my view, intended to enable the public to request and obtain
accessible records. Further, it has been held that accessible
records should be made equally available to any person, without
regard to status or interest [see e.g., Burke v. Yudelson, 368 NYS
2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman &
Sons v. New York City, 62 NY 2d 75 (1984)]. Nevertheless, if it is
clear that records are requested in the performance of one's
official duties, the request might not be viewed as having been
made under the Freedom of Information Law. In such a situation, if
a request is reasonable, and in the absence of a board rule or
policy to the contrary, I believe that a member of a public body
should not generally be required to resort to the Freedom of
Information Law in order to seek or obtain records.

However, viewing the matters from a more technical
perspective, one of the functions of a public body involves acting
collectively, as an entity. A board of education, as the governing
body of a public corporation, generally acts by means of motions
carried by an affirmative vote of a majority of its total
membership (see General Construction Law, §41). In my view, in
most instances, a board member acting unilaterally, without the
consent or approval of a majority of the total membership of the
Board, has the same rights as those accorded to a member of the
public, unless there is some right conferred upon a board member by
means of law or rule. In such a case, a member seeking records
could presumably be treated in the same manner as the public
generally. When that is so, a request by a member of the Board
could, in my opinion, be considered as a request made under the
Freedom of Information Law by a member of the public, and that
person could be assessed fees at the same rate as any member of the
public.

Further, in conjunction with the authority conferred by §1709
of the Education Law, I believe that the Board of Education could
adopt rules or procedures pertaining to the rights or privileges of
its members concerning the disclosure of records, as well as the
imposition or perhaps the waiver of fees for copies under
prescribed circumstances.

I note that one of your requests involves a "breakdown of
teacher salaries by school." In my opinion, the District is
required to maintain a record that includes the items in which you
are interested.

Although the Freedom of Information Law generally does not
require that agencies maintain or prepare records [see §89(3)], an
exception involves payroll information. Specifically, §87(3) of
the Law 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..."

While §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, 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].

Based upon the foregoing, it is clear in my view that the
District is required to maintain a record that includes the name,
title, salary and public office address (i.e., school) of all
employees, including teachers.

Lastly, you asked whether a portion of the District's Code of
Ethics is "a standard rule for boards in New York State." In
short, I am familiar with school boards' codes of ethics. It is
suggested that you raise the issue with a representative of the
School Boards Association.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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