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August 10, 1993

 

 

Mr. Steve Coffman
Finger Lake Times
218 Genesee Street
P.O. Box 393
Geneva, N.Y. 14456

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. Coffman:

I have received your letter of August 9 in which you requested an
advisory opinion concerning the Freedom of Information Law.

The correspondence attached to your letter indicates that you
requested "records or portions thereof pertaining to the time sheets
filed in 1993 by special annual employees for state Senators Michael F.
Nozzolio and John 'Randy' Kuhl." The request was denied.

In this regard, I offer the following comments.

First, I point out that §88 of the Freedom of Information Law deals
with rights of access to records of the State Legislature. Further,
while there have been numerous judicial decisions concerning rights of
access to agency records in accordance with provisions applicable to
agencies, there are few decisions that have been rendered with respect
to access to records of the Legislature.

It is also noted that the structure of the Freedom of Information
Law as it pertains to the State Legislature differs from its structure
as it pertains to agencies of state and local government subject to §87
of the Law. In brief, as the Freedom of Information Law applies to
agencies, that statute 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. As the
Law applies to the State Legislature, §88(2) and (3) include reference
to certain categories of records that must be disclosed. Therefore,
unless records of the Legislature fall within one or more of those
categories of accessible records, there is no obligation to disclose.

Second, of potential relevance to your inquiry is §88(3)(b), which
requires that each house of the State Legislature maintain and make
available "a record setting forth the name, public office address, title
and salary of every officer or employee." While that record is not the
subject of your request, it may relate to the records sought. Among the
categories of records available from the State Legislature is §88(2)(e),
which requires the disclosure of "internal or external audits and
statistical or factual tabulations of, or with respect to, material
otherwise available for inspection and copying pursuant to this section
or any other applicable provision of law."

I am unfamiliar with the specific content of the records in which
you are interested. However, if they are typical of time and attendance
records, arguably, they would include "statistical or tabulations of, or
with respect to" the payroll record required to be made available
pursuant to §88(3)(b); on the other hand, if their contents are
different or unrelated to records otherwise available by law, they would
be beyond the scope of rights of access.

Lastly, it is noted that in a decision affirmed by the State's
highest court dealing with attendance records maintained by an agency
(not the State Legislature), specifically those indicating the days and
dates of sick leave claimed by a particular employee, it was found that
the records are accessible. In that case, the Appellate Division found
that:

"One of the most basic obligations 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 an agency's 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.

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 that an agency's
attendance records must be disclosed under the Freedom of Information
Law. As suggested earlier, whether that is so with respect to similar
records maintained by the State Legislature would be dependent upon
their contents and their relationship to records that are available
pursuant to the law.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: Angelo Mangia, Counsel to the Majority
Stephen Sloan, Secretary of the Senate