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October 26, 1993

 

 

Mr. Bill Dentzer
Gannett Suburban Newspapers
One Gannett Drive
White Plains, NY 10604

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 Mr. Dentzer:

As you are aware, I have received your communication of
September 28 and related materials concerning a request directed to
the City of Yonkers under the Freedom of Information Law.

According to a letter addressed to the City's records access
officer, you sought the following information "pertaining to
security measures" taken with respect to Mayor Zaleski:

"1) A breakdown of the cost of the mayor's
police protection from its inception to the
present. Breakdown as follows:

-- Cost of training for personal bodyguards.
-- Cost of salaries (including overtime) and
benefits for personal bodyguards.
-- Cost of round-the-clock police protection
(in salary and overtime) at mayor's home.
-- Cost of all other special security measures
undertaken on mayor's behalf, such as
special equipment purchases, travel
expenses for bodyguards accompanying the
mayor, etc.

2) A description of regular security
assignments, i.e., number of officers on each
shift, both those assigned to the mayor's home
and to his personal security detail; regular
hours worked (i.e., do bodyguards work Monday-Friday?); scope of each officers duties and
responsibilities (i.e., do bodyguards travel
with the mayor at all times or only on
official city business?).

3) Records of all police or other city-generated reports involving threats against
the mayor or security complaints, as well as
records of any and all official police action,
such as investigation, taken in response to
any threat or complaint.

4) A description of any and all security
measures in place for other city officials,
either in the past or at present."

In response to item 1 of the request, you were given a sheet
containing figures that indicate the average salary of police
officers employed by the City, the average payments made to police
officers under the headings of holiday, parity, longevity and
uniform. The sheet also provides the average amount of fringe
benefits paid to officers. Also made available were two purchase
orders indicating travel expenses of or advances for two of the
Mayor's bodyguards. You were also informed that the "cost of
round-the-clock police coverage of the Mayor's home" was being
denied on the basis of subparagraphs (f) and (g) of §87(2) of the
Freedom of Information Law. Similarly, although you were told that
general information concerning "special security measures" would be
made available, the only materials disclosed involved those cited
earlier concerning the bodyguards; other records falling within
that portion of the request were withheld pursuant to the same
provisions cited earlier. Records falling within item 2 of the
request were withheld in their entirely. By providing the
information, it was stated that "we might be risking the health and
safety of the Mayor". With respect to item 3 of the request, the
records access officer wrote that the Police Department indicated
that "no reports involving threats against the Mayor were located."
The final item of the request was rejected on the ground that it is
"too broad."

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 §87(2)(a) through (i) of the Law.

Second, with respect to item 1 of the request, I do not
believe that the disclosure of statistics indicating the average
salary and other payments and fringe benefits of a City of Yonkers
police officer is responsive to your request. You did not seek an
"average" of salaries, and it is assumed that records exist
identifying those officers engaged in protecting the Mayor, the
number of hours they worked, their salaries, including overtime,
and benefits. While the City may not have "breakdowns" of the
costs in which you are interested and would not be required to
create new records on your behalf in an effort to provide the
information sought [see Freedom of Information Law, §89(3)], it is
likely that a series of existing records reflective of costs (i.e.,
salaries, number of hours worked, overtime and the like ) could be
reviewed and that you could prepare a breakdown or totals on the
basis of those records.

It is noted, too, that item 1 of your request deals solely
with records reflective of the expenditure of public monies. You
did not seek records indicating the times that police coverage
occurred at the Mayor's home; rather you sought records indicating
the "cost" of coverage. That being so, although there may be three
grounds for denial of significance, none in my view would in most
instances justify a denial of access to records.

One of the grounds for denial cited by the records access
officer is §87(2)(g). That provision enables 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. Most of the records sought, insofar as they
exist, would constitute "intra-agency" material. However, the
records requested would consist in great measure, if not in their
entirety, of statistical or factual information that must be
disclosed under §87(2)(g)(i), unless a different ground for denial
could be asserted. As such, §87(2)(g) does not appear to
constitute a valid basis for denial.

Also potentially relevant is §87(2)(b), which authorizes an
agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy". While
that standard is flexible and may often necessitate the making of
subjective judgments, the courts have provided substantial
direction regarding the privacy of public employees. It is clear
that public employees enjoy a lesser degree of privacy than others,
for it has been found in various contexts that public employees are
required to be more accountable than others. Further, the courts
have found that, as a general rule, records that are relevant to
the performance of a public employee's 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); Steinmetz v. Board of
Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30,
1980); Capital Newspapers v. Burns, 109 AD 2d 292, aff'd 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].

Based upon the foregoing, it is clear in my view that records
reflective of salaries of public employees must be prepared and
made available. Similarly, records reflective of participation in
work-related activities, such as attendance at conferences, as well
as payments or reimbursements for expenses to public employees,
would be available, for those records in my view would be relevant
to the performance of one's official duties. Insofar as vouchers
or related records include public employees' social security
numbers or home addresses, for example, I believe that those items
could be deleted from records based upon considerations of personal
privacy, for they are largely irrelevant to the performance of
one's duties. It is noted that one of the decisions cited above,
Capital Newspapers v. Burns, supra, involved a request for records
reflective of the days and dates of sick leave claimed by a
particular municipal police officer. The Appellate Division found
that those records must be disclosed, and the Court of Appeals
affirmed. The decision indicates that the public has both economic
and safety reasons for knowing whether public employees perform
their duties when scheduled to do so. As such, attendance records,
including those involving overtime work, are in my opinion
available, for they are relevant to the performance of public
employees' official duties. Similarly, I believe that records
reflective of payment of overtime must be disclosed, for the public
has an economic interest in obtaining those records and because the
records are relevant to the performance of public employees'
official duties.

It does not appear on the basis of your request that the names
of police officers or bodyguards assigned to the Mayor or his home
or who may have engaged in training, travel or purchases associated
with protection of the Mayor were requested. Since the records or
portions of records of your interest involve only facts and figures
reflective of the expenditure of public moneys, §87(2)(b) would
not, in my view, be relevant as a basis for denial.

The remaining ground for denial of potential significance is
§87(2)(f), which permits an agency to withhold records to the
extent that disclosure "would endanger the life or safety of any
person."

Records indicating the expenditure of public monies would in
my opinion be available, unless, in conjunction with §87(2)(f), it
could be demonstrated that portions of those records describe
equipment, a procedure, or a means of providing security so unique
that disclosure would enable potential lawbreakers to evade
detection, engage in unlawful acts and, therefore, endanger one's
life or safety. It is noted, too, that your request involves
security services that have already been provided. If your request
was prospective, i.e., if you sought a schedule indicating when the
Mayor will and will not have bodyguards assigned to him, it might
be argued that disclosure could endanger his safety. Even in that
case, particularly since there are apparently no reports or records
involving threats against the Mayor, it is questionable in my view
whether §87(2)(f) could appropriately be asserted.

In addition, it appears that you are and that others, or even
the public generally, may be aware of the assignment of security
people to the Mayor and his home. If that is so, and if those
personnel can be plainly seen or observed, I question how
disclosure of the records describing what can be publicly observed
would endanger one's safety.

I would conjecture that many mayors or chief executive
officers of units of government similar in size or larger than
Yonkers have no special security detail assigned to them or their
homes. Are those people in greater danger than Mayor Zaleski? I
do not know the answer; nevertheless, it is questionable in my
opinion how, whether or the extent to which disclosure of the
records sought would endanger the safety of the Mayor or others.

Third, it is emphasized that the courts have consistently
interpreted the Freedom of Information Law in a manner that fosters
maximum access. As stated by the Court of Appeals more than decade
ago:

"To be sure, the balance is presumptively
struck in favor of disclosure, but in eight
specific, narrowly constructed instances where
the governmental agency convincingly
demonstrates its need, disclosure will not be
ordered (Public Officers Law, section 87, subd
2). Thus, the agency does not have carte
blanche to withhold any information it
pleases. Rather, it is required to articulate
particularized and specific justification
and,if necessary, submit the requested
materials to the courts for in camera
inspection, to exempt its records from
disclosure (see Church of Scientology of N.Y.
v. State of New York, 46 NY 2d 906, 908).
Only where the material requested falls
squarely within the ambit of one of these
statutory exemptions may disclosure be
withheld" [Fink v. Lefkowitz, 47 NY 2d 567,
571 (1979)]."

In another decision rendered by the Court of Appeals, it was held
that:

"Exemptions are to be narrowly construed to
provide maximum access, and the agency seeking
to prevent disclosure carries the burden of
demonstrating that the requested material
falls squarely within a FOIL exemption by
articulating a particularized and specific
justification for denying access" [Capital
Newspapers v. Burns, 67 NY 2d 562, 566 (1986);
see also, Farbman & Sons v. New York City, 62
NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)].

Moreover, in the same decision, in a statement regarding the intent
and utility of the Freedom of Information Law, it was 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"
(id., 565-566).

Lastly, item 4 of your request was denied on the ground that
it was "too broad." In that aspect of the request, you sought "a
description of any and all security measures in place for other
city officials, either in the past or the present." I agree with
the records access officer's assessment of that portion of your
request and I point out that §89(3) of the Freedom of Information
Law requires that an applicant "reasonably describe" the records
sought. Therefore, a request should contain sufficient detail to
enable agency staff to locate and identify the records in which you
are interested. It is suggested that you might alter your request
so that it pertains to particular officials or classes of
officials, as well as a time period during which any such security
measures were implemented.

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: Richard Slingerland