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April 8, 1993

 

 

Ms. Patricia Carroll
137 McConnell Avenue
Bayport, N.Y. 11705

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.

Ms. Patricia Carroll:

I have received your letter of March 20. You wrote that you
submitted a request, apparently to your school district, seeking
"total w-2 reported wages" paid to staff. It was returned,
however, because you did not "word it correctly." You have asked
how such a request might be written.

In this regard, I offer the following comments.

First, §89(3) of the Freedom of Information Law requires that
an applicant must "reasonably describe" the records sought.
Therefore, a request should include sufficient information to
enable agency officials to locate and identify the records in which
you are interested. In my view, if you requested "total w-2 wages
paid" to particular employees during a certain calendar year, your
request would have been appropriate. It is suggested that you use
the sample letter of request in the enclosed brochure and that you
seek w-2 forms or other records containing information reflective
of gross wages paid to particular employees during a calendar year.

Second, with certain qualifications, I believe that W-2 forms
or records containing equivalent information must be disclosed. In
terms of rights of access, 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.

Although tangential to your inquiry, I point out that
§87(3)(b) of the Freedom of Information 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... "

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 must be disclosed for the following
reasons.

One of the grounds for denial, section 87(2)(b), 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, 109 AD 2d
292, aff'd 67 NY 2d 562 (1986) ; Steinmetz v. Board of 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 stated
prior to the enactment of the Freedom of Information Law, payroll
records:

"...represent important fiscal as well as
operational 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.

It has been contended that W-2 forms are specifically exempted
from disclosure by statute on the basis of 26 USC 6103 (the
Internal Revenue Code) and §697(e) of the Tax Law. In my opinion,
those statutes are not applicable in this instance. In an effort
to obtain expert advice on the matter, I contacted the Disclosure
Litigation Division of the Office of Chief Counsel at the Internal
Revenue Service to discuss the issue. I was informed that the
statutes requiring confidentiality pertain to records received and
maintained by the Internal Revenue Service; those statutes do not
pertain to records kept by an individual taxpayer [see e.g.,
Stokwitz v. Naval Investigation Service, 831 F.2d 893 (1987)], nor
are they applicable to records maintained by an employer, such as
a school district. In short, the attorney for the Internal Revenue
Service said that the statutes in question require confidentiality
only with respect to records that it receives from the taxpayer.

In conjunction with the previous commentary concerning the
ability to protect against unwarranted invasions of personal
privacy, I believe that portions of W-2 forms could be withheld,
such as social security numbers, home addresses and net pay, for
those items are largely irrelevant to the performance of one's
duties. However, for reasons discussed earlier, those portions
indicating public officers' or employees' names and gross wages
must in my view be disclosed. Moreover, in a recent decision, the
same conclusion was reached, and the court cited an advisory
opinion rendered by this office (Day v. Town of Milton, Supreme
Court, Saratoga County, April 27, 1992). There may be hundreds of
W-2 forms from which portions could be deleted, but I believe that
employers, i.e., the District, must also prepare an equivalent
record that includes employees' names and gross wages. It is
suggested that you discuss that possibility with an official of the
District, for it would be more efficient and less burdensome to
disclose a single listing than hundreds of forms.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
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cc: Records Access Officer