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May 19, 1993

 

 

Mr. David L. Jones
Deputy Town Attorney
Town of Tonawanda
22 Victoria Blvd.
Kenmore, N.Y. 14217

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. Jones:

I have received your letter of May 3 and the correspondence
attached to it. You have sought an advisory opinion concerning the
propriety of a denial of access to records.

According to the correspondence, the Town of Tonawanda
received a request for records pertaining to all employees who have
retired since January 1, 1987, including their names, addresses and
phone numbers. You denied the request on the basis of §89(7) of
the Freedom of Information Law.

In my opinion, although the names of retirees should be
disclosed, their home addresses and telephone numbers could
properly be withheld. In this regard, I offer the following
comments.

First, with respect to home addresses of present or former
public employees, §89(7) states in relevant part that "Nothing in
this article shall require the disclosure of the home address of an
officer or employee, former officer or employee, or of a retiree of
a public employees' retirement system." As such, it is clear that
the portion of the request pertaining to retirees' home addresses
could justifiably be denied.

Second, 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, records identifying public employees have long been
available. That being so, I believe that the names of retirees
must be disclosed. Since the fact of one's public employment would
have been public when that person was so employed, a record
indicating a person's previous public employment would be
accessible.

I note that, in response to the request, you highlighted a
clause in §89(7) stating that the Freedom of Information Law does
not require the disclosure of "the name or home address of a
beneficiary of a public employees' retirement system." In my view,
the name of a retiree is not the same as the name of the person
designated by a retiree as a beneficiary. The beneficiary would be
a spouse, a relative or some other person, and that person's name,
unlike that of the retiree, could be withheld.

Lastly, I believe that home phone numbers of either present or
former public employees could be withheld as an unwarranted
invasion of personal privacy. From my perspective, those persons'
home telephone numbers are irrelevant to the performance of their
current or prior duties. Further, it is my view that disclosure of
one's telephone number, particularly that of a retiree, would be
more intrusive and more of an invasion of privacy than the
disclosure of that person's home address. Since the home address
can clearly be withheld, I believe that a home telephone number
could also properly be withheld.

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

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