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May 4, 1993

 

 

Ms. Aimee J. Fitzgerald,
President, TAG
c/o 55 Ridge Terrace
Central Valley, NY 10917

Mr. Terrence L. Olivo
Superintendent of Schools
Monroe-Woodbury Central School District
Education Center
Central Valley, NY 10917

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 Ms. Fitzgerald and Mr. Olivo:

I have received your letters, which are respectively dated
April 21 and April 30. Both deal with a request by Ms. Fitzgerald
on behalf of the TAG/Taxpayers Action Group for records indicating
"accrued unused sick days" of employees of the Monroe-Woodbury
Central School District. Mr. Olivo's correspondence includes a
determination to affirm an initial denial of the request on the
ground that disclosure would constitute "an unwarranted invasion of
personal privacy", and that, therefore, the District is "precluded
from releasing such information to a third party."

Ms. Fitzgerald has sought an advisory opinion on the matter,
and, in this regard, I offer the following comments.

First, 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 two of the grounds for denial relate to attendance records
involving the use of leave time, based upon the language of the Law
and its judicial interpretation, I believe that such records are
generally available.

In addition to the provisions dealing with the protection of
privacy, also significant to an analysis of rights of access is
§87(2)(g), which 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.

Attendance records could be characterized as "intra-agency
materials." However, those portions reflective of dates or figures
concerning the use of leave time or absences or the time that
employees arrive at or leave work would constitute "statistical or
factual" information accessible under §87(2)(g)(i).

As indicated in Mr. Olivo's denial, also relevant is
§87(2)(b), which permits an agency to withhold record or portions
of records when disclosure would result in "an unwarranted invasion
of personal privacy." The 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)].

In a decision affirmed by the State's highest court dealing
with attendance records, specifically those indicating the days and
dates of sick leave claimed by a particular employee, it was found,
in essence, that disclosure would result in a permissible rather
than an unwarranted invasion of personal privacy. In that case,
the Appellate Division found that:

"One of the most basic obligation of any
employee is to appear for work when scheduled
to do so. Concurrent with this is the rights
of an employee to properly use sick leave
available to him or her. In the instant case,
intervenor had an obligation to report for
work when scheduled along with a right to use
sick leave in accordance with his collective
bargaining agreement. The taxpayers have an
interest in such use of sick leave for
economic as well as safety reasons. Thus it
can hardly be said that disclosure of the
dates in February 1983 when intervenor made
use of sick leave would constitute an
unwarranted invasion of privacy. Further, the
motives of petitioners or the means by which
they will report the information is not
determinative since all records of government
agencies are presumptively available for
inspection without regard to the status, need,
good faith or purpose of the applicant
requesting access..." [Capital Newspapers v.
Burns, 109 AD 2d 92, 94-95 (1985), aff'd 67
NY 2d 562 (1986)].

Insofar as attendance records or time sheets include reference
to reasons for an absence, it has been advised that an explanation
of why sick time might have been used, i.e., a description of an
illness or medical problem found in records, could be withheld or
deleted from a record otherwise available, for disclosure of so
personal a detail of a person's life would likely constitute an
unwarranted invasion of personal privacy and would not be relevant
to the performance of an employee's duties. A number, however,
which merely indicates the amount of sick time or vacation time
accumulated or used, or the dates and times of attendance or
absence, would not in my view represent a personal detail of an
individual's life and would be relevant to the performance of one's
official duties. Therefore, I do not believe that §87(2)(b) could
be asserted to withhold that kind of information contained in an
attendance record.

Moreover, in affirming the Appellate Division decision in
Capital Newspapers, the Court of Appeals found that:

"The Freedom of Information Law expresses this
State's strong commitment to open government
and public accountability and imposes a broad
standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New
York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance
of the public's vested and inherent 'right to
know', 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"
(Capital Newspapers v. Burns, supra, 565-566).

Based on the preceding analysis, it is clear in my view that
attendance records, including those concerning the use or accrual
of sick leave, must be disclosed under the Freedom of Information
Law.

Lastly, even when the District may properly withhold records
or portions of records because disclosure would result in an
unwarranted invasion of personal privacy, which I do not believe to
be so in this instance, it would not be "precluded from releasing
such information" as Mr. Olivo suggested. While an agency may
withhold records in certain circumstances, it is not obliged to do
so, for the Freedom of Information Law is permissive. The Court of
Appeals has held that the exceptions to rights of access are
permissive, rather than mandatory, stating that:

"while an agency is permitted to restrict
access to those records falling within the
statutory exemptions, the language of the
exemption provision contains permissible
rather than mandatory language, and it is
within the agency's discretion to disclose
such records, with or without identifying
details, if it so chooses" [Capital Newspapers
v. Burns, 67 NY 2d 562, 567 (1986)].

Therefore, although an agency may in appropriate circumstances
withhold records, I do not believe that it is obliged to do so.

I hope that the foregoing serves to enhance your understanding
of the Freedom of Information Law and that I have been of
assistance. Should any questions arise, please feel free to
contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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