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April 9, 1993

 

 

Ms. Winifred Veitch
R#1, Box 248
Waddington, N.Y. 13694

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,
unless otherwise indicated.

Dear Ms. Veitch:

I have received your letter of March 25 in which you asked
that I confirm our telephone conversation and "rule on the
controversy" between yourself and officials of the Madrid-Waddington Central School."

According to your letter, on March 8, you wrote to the
School's records access officer and requested that "an itemized
list setting forth name, address, title and salary of every officer
and employee in the Madrid-Waddington School System be compiled and
made available for [your] inspection." A salary schedule was later
provided, but it did not identify employees by name. Consequently,
you discussed the matter with the Superintendent, Mr. James Boyle,
who "agreed to have the list compiled." Soon thereafter, you were
informed that the fee for the list would be $46.91, and that you
should complete a form that was sent to you.

In conjunction with the foregoing, you raised the following
questions:

"Do I have the right to request to examine a
list containing the name, address, title and
salary of every employee of my school
district? Do I have the right to copy the
list? Can the school charge me for compiling
the list? For copying it? Am I required to
fill in the second request for the information
and certify that the only purpose of the
records inspection is for my information, and
that it will not be used for any private,
commercial, fund-raiser, or other purpose?"

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 cannot "rule" or compel an agency
to grant or deny access to records. Nevertheless, I offer the
following comments that should be considered as advisory.

First, 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 §87(2)(a) through (i) of the
Law.

With certain exceptions, the Freedom of Information Law is
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 eighty-seven..."

However, a payroll list of employees is included among the records
required to be kept pursuant to "subdivision three of 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 described above must be disclosed for the
following reasons.

One of the grounds for denial, §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)]. Miller dealt specifically with a request by
a newspaper for the names and salaries of public employees, and in
Gannett, 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
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.

Second, in general, the reasons for which a request is made or
an applicant's potential use of records are irrelevant, and it has
been held that if records are accessible, they should be made
equally available to any person, without regard to status or
interest [see e.g., M. Farbman & Sons v. New York City. 642 NY 2d
75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d
673, 378 NYS 2d 165 (1976)]. However, section 89(2)(iii) of the
Freedom of Information Law permits an agency to withhold "lists of
names and addresses if such lists would be used for commercial or
fund-raising purposes" on the ground that disclosure would
constitute an unwarranted invasion of personal privacy. Due to the
language of that provision, the intended use of a list of names and
addresses is relevant, and case law indicates that an agency can
ask why a list of names and addresses has been requested [see
Goldbert v. Suffolk County Department of Consumer Affairs, Sup.
Ct., Suffolk Cty., (September 5, 1980).

Nevertheless, section 89(6) of the Freedom of Information Law
states that:

"Nothing in this article shall be construed to
limit or abridge any otherwise available right
of access at law or in equity to any party to
records."

As such, if records are available as of right under a different
provision of law or by means of judicial determination, nothing in
the Freedom of Information Law can serve to diminish rights of
access. In this instance, since payroll information in question
was found to be available prior to the enactment of the Freedom of
Information Law, I believe that it must be disclosed, regardless of
the intended use of the records. Consequently, in my view the
payroll record required to be maintained should be disclosed to any
person, irrespective of its intented use, and that it should be
unnecessary to complete the second form. I point out, too, that
section 87(3)(b) refers to an officer or employee's "public office
address", i.e., a business address. Therefore, the record
maintained pursuant to that provision pertains to public employees
in their business capacities. As such, there is little that could
be characterized as intimate or personal in terms of that content
of that record. Again, in the case of other lists of names and
addresses, I believe that an agency may inquire as to the intended
use of the list.

Third, with respect to fees, §87(1)(b)(iii) of the Freedom of
Information Law states that an agency's rules and regulations must
include reference to:

"the fees for copies of records which shall
not exceed twenty-five cents per photocopy not
in excess of nine inches by fourteen inches,
or the actual cost of reproducing any other
record, except when a different fee is
otherwise prescribed by statute."

Based upon the foregoing, unless a different statute authorizes
other fees, the first clause of the provision quoted above provides
that an agency may charge up to twenty-five cents per photocopy for
records up to nine by fourteen inches. The next clause, which
deals with the "actual cost of reproduction", pertains to "other"
records, i.e., those records that cannot be duplicated by means of
photocopying, such as tape recordings or computer tapes.

In my view, since the record in question must be "maintained"
pursuant to §87(3)(b) of the Freedom of Information Law, I do not
believe that any fee could be charged to inspect it. If a copy is
requested, the School could charge up to twenty-five cents per
photocopy for paper copies. If the record is computer generated,
i.e., if a printout is prepared, the School could assess a fee
based on the actual cost of reproduction, i.e., computer time and
the cost of paper.

Moreover, the specific language of the Freedom of Information
Law and the regulations promulgated by the Committee on Open
Government indicate that, absent statutory authority, an agency may
charge fees only for the reproduction of records. Section 87(1)(b)
of the Freedom of Information Law states:

"Each agency shall promulgate rules and
regulations in conformance with this
article...and pursuant to such general rules
and regulations as may be promulgated by the
committee on open government in conformity
with the provisions of this article,
pertaining to the availability of records and
procedures to be followed, including, but not
limited to...

(iii) the fees for copies of records
which shall not exceed twenty-five
cents per photocopy not in excess of
nine by fourteen inches, or the
actual cost of reproducing any other
record, except when a different fee
is otherwise prescribed by statute."

The regulations promulgated by the Committee states in
relevant part that:

"Except when a different fee is otherwise
prescribed by statute:

(a) There shall be no fee charged for the
following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to
this Part" (21 NYCRR section
1401.8).

As such, the Committee's regulations specify that no fee may be
charged for inspection of or search for records, except as
otherwise prescribed by statute.

Lastly, although compliance with the Freedom of Information
Law involves the use of public employees' time, the Court of
Appeals has found that the Law is not intended to be given effect
"on a cost-accounting basis", but rather that "Meeting the public's
legitimate right of access to information concerning government is
fulfillment of a governmental obligation, not the gift of, or waste
of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].

In order to enhance compliance with and understanding of the
Freedom of Information Law, copies of the this opinion will be
forwarded to the Superintendent and the Board of Education.

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
cc: James F. Boyle, Superintendent of Schools
Board of Education