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November 5, 1993

 

 

Mr. John P. Curry
4100 Old Vestal Road
Vestal, NY 13850

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. Curry:

I have received your letter of October 7. Having sought a
list of employees of the City of Binghamton, including their job
descriptions and salaries, the request was denied. According to
the form attached to your letter, the City referred to "unwarranted
invasion of personal privacy" and "commercial solicitation" as the
grounds for denial.

You have sought my opinion concerning the propriety of the
denial. In this regard, I offer the following comments.

First, in terms of rights of access, 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.

With 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 indicated in the response to your request, §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 specifically 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. 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
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.

Second, in general, the reasons for which a request is made or
an applicant's potential use of records are irrelevant, and it has
been held that if records are accessible, they should be made
equally available to any person, without regard to status or
interest [see e.g., M. Farbman & Sons v. New York City. 642 NY 2d
75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d
673, 378 NYS 2d 165 (1976)]. However, section 89(2)(iii) of the
Freedom of Information Law permits an agency to withhold "lists of
names and addresses if such lists would be used for commercial or
fund-raising purposes" on the ground that disclosure would
constitute an unwarranted invasion of personal privacy. Due to the
language of that provision, the intended use of a list of names and
addresses is relevant, and case law indicates that an agency can
ask why a list of names and addresses has been requested [see
Goldbert v. Suffolk County Department of Consumer Affairs, Sup.
Ct., Suffolk Cty., (September 5, 1980).

Nevertheless, §89(6) of the Freedom of Information Law states
that:

"Nothing in this article shall be construed to
limit or abridge any otherwise available right
of access at law or in equity to any party to
records."

As such, if records are available as of right under a different
provision of law or by means of judicial determination, nothing in
the Freedom of Information Law can serve to diminish rights of
access. In this instance, since payroll information in question
was found to be available prior to the enactment of the Freedom of
Information Law, I believe that it must be disclosed, regardless of
the intended use of the records. Consequently, in my view, the
payroll record required to be maintained should be disclosed to any
person, irrespective of its intended use.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Juanita Crabb, Mayor
Linda Kingsley, Corporation Counsel