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December 17, 1993

 

 

Ms. Elaine Gilbert, Editor
The Advocate
Rockland Community Development Council
22 Main Street
Monsey, NY 10952

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 Ms. Gilbert:

As you are aware, I have received your letter of November 2
and the correspondence attached to it. Please accept my apologies
for the delay in response.

Your initial area of inquiry involves a request made to the
Town of Ramapo for records of the "numbers of police officers on
duty in the Town". The request was denied because disclosure
"would endanger the lives and safety of the citizens of Ramapo" and
releasing "the number of officers on duty at any specific time
could hamper the Police Department in carrying out its public
safety function". You indicated by phone that you are not
interested in the location where police officers may be stationed
but rather the "numbers of shifts" performed by officers.

Additionally, you asked whether you can obtain "information on
how many employees are employed in each Town department and details
on the perks (insurance coverage, medical plan, etc.) they are
entitled to".

In this regard, it is noted at the outset that 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 respect to the initial issue, I believe that the only
significant potential basis for denial would be §87(2)(f). That
provision states that an agency may withhold records or portions
thereof to the extent that disclosure "would endanger the life or
safety of any person". The proper assertion of that provision is
in my view dependent upon attendant facts and circumstances. If,
for example, a police department is small and a request is made
regarding assignments or schedules to be carried out in the future,
§87(2)(f) might be validly cited to withhold records. If it is
known in advance that there will be police patrols in one part of
a municipality but not another during a particular period,
disclosure might enable potential lawbreakers to take advantage of
the absence of a patrol, thereby endangering lives and safety.
However, if a police department is large, and if a request does not
involve the placement of officers but merely their presence during
a shift, it is questionable in my view whether §87(2)(f) could
properly be asserted. Further, if a request pertains to prior
activity, i.e., how many officers were present during certain
shifts last month or last week, it is difficult to envision how
disclosure, after the fact, could endanger anyone's life or safety.

I point out that in a decision affirmed by the State's highest
court dealing with attendance records maintained by an agency
specifically those indicating the days and dates of sick leave
claimed by a particular police officer, 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)].

Based on the preceding commentary, I believe that attendance
records pertaining to public employees must be disclosed.

With respect to the remaining materials to which you referred,
I believe that they must be disclosed. Although tangential to your
inquiry, §87(3)(b) requires each agency to maintain and make
available a record setting forth the name, public office address,
title and salary of every officer or employee of the agency. As
such, I believe that records indicating or containing information
that would enable you to know how many persons are employed within
Town departments would clearly be available.

With regard to "perks", often fringe benefits are referenced
in collective bargaining agreements. Those records and others
indicating an agency's costs per employee, or by the category of
the benefit conferred, would in my opinion be available. In short,
none of the grounds for denial could in my view be asserted to
withhold such records. Further, I believe that a disclosure
indicating that a public officer or employee is covered by a health
insurance plan at public expense would not represent or reveal an
intimate detail of one's life that could be withheld as an
unwarranted invasion of personal privacy [see Freedom of
Information Law, §87(2)(b)]. Arguably, the record reflective of
the dates of sick leave claimed by a public employee found by the
courts to be available represents a more intimate or personal
invasion of privacy. However, if a disclosure of the cost of
coverage for a particular employee indicates which plan that person
has chosen or whether his or her plan involves individual or
dependent coverage, such a disclosure in my view may potentially
result in the revelation of a number of details of a person's life
and an unwarranted invasion of personal privacy. For instance, an
indication of cost relative to a particular employee might reveal
whether the coverage involves medical treatment routinely provided
by a clinic, as opposed to a primary care physician; it also may
indicate the nature of coverage, i.e., whether coverage is basic or
includes catastrophic care. The cost may also reveal whether
coverage is for an employee alone or for that person's family or
dependents. More appropriate in my opinion would be a disclosure
of costs by category, rather than by naming individuals, in terms
of plans that are offered or available to officers or employees.

Lastly, in terms of public policy, it is emphasized that in
affirming the Appellate Division decision in Capital Newspapers,
the case cited earlier involving attendance records, 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).

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: Alan Berman, Deputy Town Attorney