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April 21, 1993

 

Mr. Albert Merget
South Ridge Road
P.O. Box 754
Pomona, N.Y. 10970

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. Merget:

I have received your letter of April 6 in which you sought
assistance in obtaining various records from the East Ramapo School
District.

Having reviewed the materials attached to your letter, some of
the records sought were made available; in other cases, you were
informed that the records sought did not exist. Further, in
response to a request for the "job description, qualifications,
credentials and compensation package including salary, benefits and
perquisites" for certain personnel, the job descriptions were made
available, but the District Clerk wrote that "an individual's
personnel files is confidential."

In this regard, I offer the following comments.

First, I point out that the Freedom of Information Law
generally pertains to existing records. Section 89(3) of the Law
states in part that, with few exceptions, an agency is not required
to create a record in response to a request. Therefore, using one
aspect of your request as an example, if the District maintains no
list of lawsuits filed by or against the District between certain
dates, it would not be required to prepare such a list on your
behalf. Rather than requesting a "list", it is suggested that you
seek records identifying lawsuits filed by or against the District
during the period in question.

Second, the Freedom of Information Law, in brief, 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.

It is noted that there is nothing in the Freedom of
Information Law that deals specifically with personnel records or
personnel files. Further, the nature and content of so-called
personnel files may differ from one agency to another, and from one
employee to another. In any case, neither the characterization of
documents as "personnel records" nor their placement in personnel
files would necessarily render those documents "confidential" or
deniable under the Freedom of Information Law (see Steinmetz v.
Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ,
Oct. 30, 1980). On the contrary, the contents of those documents
serve as the relevant factors in determining the extent to which
they are available or deniable under the Freedom of Information
Law.

The provision in the Freedom of Information Law of most
significance concerning personnel records is, in my view,
§87(2)(b). That provision permits an agency to withhold records to
the extent that disclosure would constitute "an unwarranted
invasion of personal privacy".

While the standard concerning privacy is flexible and may be
subject to conflicting interpretations, the courts have provided
substantial direction regarding the privacy of public officers
employees. It is clear that public officers and employees enjoy a
lesser degree of privacy than others, for it has been found in
various contexts that public officers and employees are required to
be more accountable than others. Further, with regard to records
pertaining to public officers and employees, the courts have found
that, as a general rule, records that are relevant to the
performance of a their 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); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v.
NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988);
Steinmetz v. Board of Education, East Moriches, supra; 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].

In a discussion of the intent of the Freedom of Information
Law by the state's highest court in a case cited earlier, the Court
of Appeals in Capital Newspapers, supra, found that the statute:

"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"
(67 NY 2d at 566).

Based upon the foregoing, an administrator's contract, like a
collective bargaining agreement between a public employer and a
public employee union, must be disclosed, for it is clearly
relevant to the duties, terms and conditions regarding the
employment of a public employee. Similarly, records reflective of
"benefits and perquisites", for example, would be available in my
view, for disclosure of those items as they relate to public
employees would result in a permissible, not an unwarranted
invasion of personal privacy.

In a related vein, it would appear that the most important
document regarding the qualifications of a teacher, administrator
or supervisor, is a certification. As I understand it, the
issuance of a certification, which I believe is the equivalent of
a license, is based upon findings by the State Education Department
that a particular individual has met the qualifications to engage
in a particular area or areas of teaching or education. As such,
the certification is likely the best and most accurate source of
determining a teacher's qualifications. Further, I believe that it
is clearly relevant to the performance of the employee's officials
duties. Further, with respect to the qualifications of employees
if, for example, an individual must have certain types of
experience, educational accomplishments, licenses or certifications
as a condition precedent to serving in a particular position, those
aspects of a resume or application would in my view be relevant to
the performance of the official duties of not only the individual
to whom the record pertains, but also the appointing agency or
officers. In a different context, when a civil service examination
is given, those who pass are identified in "eligible lists" which
have long been available to the public. By reviewing an eligible
list, the public can determine whether persons employed by
government have passed the appropriate examinations and met
whatever qualifications that might serve as conditions precedent to
employment. In my opinion, to the extent that the records sought
contain information pertaining to the requirements that must have
been met to hold a position, they should be disclosed. Again, I
believe that disclosure of those aspects of documents would result
in a permissible rather than an unwarranted invasion of personal
privacy. Disclosure represents the only means by which the public
can be aware of whether the incumbent of the position has met the
requisite criteria for serving in that position.

Although some aspects of one's employment history may be
withheld, the fact of a person's public employment is a matter of
public record, for records identifying public employees, their
titles and salaries must be prepared and made available under the
Freedom of Information Law [see §87(3)(b)]. However, information
included in a document that is irrelevant to criteria required for
holding the position, such as grade point average, class rank, home
address, social security number and the like, could in my opinion
be deleted prior to disclosure of the remainder of the record to
protect against an unwarranted invasion of personal privacy.

With regard to salary information, as indicated earlier,
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.

As stated previously, §87(2)(b) of the Freedom of Information
Law 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 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.
Moreover, 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.

Finally, since one aspect of your request involves payments
made to attorneys by the District, I point out that although the
communications between an attorney and client are often privileged,
it has been established in case law that records of the monies paid
and received by an attorney or a law firm for services rendered to
a client are not privileged [see e.g., People v. Cook, 372 NYS 2d
10 (1975)]. If, however, portions of time sheets, bills or related
records contain information that is confidential under the
attorney-client privilege, those portions could in my view be
deleted under section 87(2)(a) of the Freedom of Information Law,
which permits an agency to withhold records or portions thereof
that are "specifically exempted from disclosure by state or federal
statute" (see Civil Practice Law and Rules, section 4503).
Therefore, while some identifying details or descriptions of
services rendered found in the records in question might
justifiably be withheld, numbers indicating the amounts expended
and other details to be discussed further are in my view accessible
under the Freedom of Information Law.

It is also noted that decisions have been rendered under the
Freedom of Information Law in which it was held that records
indicating payment by a village to its attorney are available [see
Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., August
20, 1981; Young v. Virginia R. Smith, Mayor of the Village of
Ticonderoga, Supreme Court, Essex County, Jan. 9, 1987]. In
Minerva, supra, the issue involved a request for copies of both
sides of cancelled checks made payable to a municipality's
attorney. Although the court held that the front sides of the
checks, those portions indicating the amount paid to the attorney,
must be disclosed, it was found that the backs of the checks could
be withheld, for disclosure might indicate how the attorney "spends
his 'paychecks.'"

Most recently, in Knapp v. Board of Education, Canisteo
Central School District (Supreme Court, Steuben County, November
23, 1990), the applicant ("petitioner") sought billing statements
for legal services provided to the Board ("respondents") by a law
firm. Since the statements made available included "only the time
period covered and the total amount owed for services and
disbursements", petitioner contended that "she is entitled to that
billing information which would detail the fee, the type of matter
for which the legal services were rendered and the names of the
parties to any current litigation". In its discussion of the
issue, the court found that:

"The difficulty of defining the limits of the
attorney client privilege has been recognized
by the New York State Court of Appeals.
(Matter of Priest v. Hennessy, 51 NY2d 62,
68.) Nevertheless, the Court has ruled that
this privilege is not limitless and generally
does not extend to the fee arrangements
between an attorney and client. (Matter of
Priest v. Hennessy, supra.) As a
communication regarding a fee has no direct
relevance to the legal advice actually given,
the fee arrangement is not privileged.
(Matter of Priest v. Hennessy, supra. at 69.)

"There appear to be no New York cases which
specifically address how much of a fee
arrangement must be revealed beyond the name
of the client, the amount billed and the terms
of the agreement. However, the United States
Court of Appeals, in interpreting federal law,
has found that questions pertaining to the
date and general nature of legal services
performed were not violative of client
confidentiality. (Cotton v. United States,
306 F.2d 633.) In that Court's analysis such
information did not involve the substance of
the matters was not privileged...

"...Respondents have not justified their
refusal to obliterate any and all information
which would reveal the date, general nature of
service rendered and time spent. While the
Court can understand that in a few limited
instances the substance of a legal
communication might be revealed in a billing
statement, Respondents have failed to come
forward with proof that such information is
contained in each and every document so as to
justify a blanket denial of disclosure.
Conclusory characterizations are insufficient
to support a claim of privilege. (Church of
Scientology v. State of New York, 46 NY 2d
906, 908.)...Therefore, Petitioner's request
for disclosure of the fee, type of matter and
names of parties to pending litigation on each
billing statement must be granted."

Based upon the foregoing and subject to the qualifications
discussed above, I believe that the records involving payments to
attorneys should be disclosed.

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, a copy of this opinion will be
forwarded to the District Clerk.

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: Janet S. Hardwick, District Clerk