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March 29, 1994

 

 

Mr. Neil M. Block
Ingerman, Smith, Greenberg, Gross
Richmond, Heidelberger, Reich & Scricca
167 Main Street
Northport, NY 11768

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. Block:

I have received a copy of your letter of February 3 in which
you requested an advisory opinion concerning the Freedom of
Information Law. Please note that the letter that you sent did not
reach this office. However, one of the persons to whom you sent a
copy, Jerome Lefkowitz, Deputy Counsel to CSEA, contracted me to
discuss the issue that you raised. Consequently, I asked that he
forward a copy of your letter, and he did so.

The question is whether the Freedom of Information Law or any
other statute of which I am aware "prohibits a board of cooperative
educational services from furnishing social security account
numbers of its employees to a union which is recognized or
certified to represent those employees".

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.

In my opinion, the only relevant basis for denial regarding
the information in question would be §87(2)(b), which authorizes an
agency to withhold records or portions thereof to the extent that
disclosure would constitute "an unwarranted invasion of personal
privacy."

While the standard concerning privacy is flexible and may be
subject to conflicting interpretations, the courts have provided
substantial direction regarding the privacy of public officers
employees. It is clear that public officers and employees enjoy a
lesser degree of privacy than others, for it has been found in
various contexts that public officers and employees are required to
be more accountable than others. Further, with regard to records
pertaining to public officers and employees, the courts have found
that, as a general rule, records that are relevant to the
performance of a their 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); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v.
NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988);
Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk
Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 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).

In my view, a public employee's social security number is
largely irrelevant to the performance of that person's duties.
Consequently, I believe that an agency may withhold public
employees' social security numbers on the ground that disclosure
would constitute an unwarranted invasion of personal privacy.
Further, the same conclusion was recently reached by the Appellate
Division, First Department (Matter of Seelig, __AD 2d__, NYLJ,
February 10, 1994).

Second, even though a local government agency, i.e., a board
of cooperative educational services, may withhold records or
portions thereof, it is not obliged to do so, because the Freedom
of Information Law is permissive. As stated by the Court of
Appeals, "...while an agency is permitted to restrict access to
those records falling within the statutory exemptions, the language
of the exemption provision contains permissive rather than
mandatory language, and it is within the agency's discretion to
disclose such records...if it so chooses" [Capital Newspapers, v.
Burns, 67 NY 2d 562, 567 (1986)].

Therefore, in response to your specific question, while I
believe that the agency in question may withhold its employees'
social security numbers, neither the Freedom of Information Law nor
any other statute of which I am aware would "prohibit" that agency
from disclosing its employees' social security numbers.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: Jerome Lefkowitz