NY.gov Portal State Agency Listing

 

March 30, 1994

 

 

Mr. Wallace S. Nolen
P.O. Box 1389
Poughkeepsie, NY 12602

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. Nolen:

As you are aware, I have received your letter of February 24.
Please accept my apologies for the delay in response.

You have raised issues concerning the implementation of the
Freedom of Information Law by the Putnam County Office of the
Sheriff. That agency requires that its form be completed in order
to request records. In addition, it will not apparently disclose
the names of its employees in a payroll or salary list.

In this regard, I offer the following comments.

First, by way of background, §89(3) of the Freedom of
Information Law provides direction concerning the time in which an
agency must respond to requests. Specifically, the cited provision
states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision states in relevant part that:

"any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

In conjunction with the foregoing, I do not believe that an
agency can require that a request be made on a prescribed form. To
reiterate, the Freedom of Information Law, §89(3), as well as the
regulations promulgated by the Committee (21 NYCRR 1401.5), which
have the force of law and govern the procedural aspects of the Law,
require that an agency respond to a request that reasonably
describes the record sought within five business days of the
receipt of a request. Further, the regulations indicate that "an
agency may require that a request be made in writing or may make
records available upon oral request" [21 NYCRR 1401.5(a)]. As
such, neither the Law nor the regulations refer to, require or
authorize the use of standard forms. Accordingly, it has
consistently been advised that any written request that reasonably
describes the records sought should suffice.

It has also been advised that a failure to complete a form
prescribed by an agency cannot serve to delay a response or deny a
request for records. A delay due to a failure to use a prescribed
form might result in an inconsistency with the time limitations
imposed by the Freedom of Information Law. For example, assume
that an individual, such as yourself in the situation that you
described, requests a record in writing from an agency and that the
agency responds by directing that a standard form must be
submitted. By the time the individual submits the form, and the
agency possesses and responds to the request, it is probable that
more than five business days would have elapsed, particularly if a
form is sent by mail and returned to the agency by mail.
Therefore, to the extent that an agency's response granting,
denying or acknowledging the receipt of a request is given more
than five business days following the initial receipt of the
written request, the agency, in my opinion, would have failed to
comply with the provisions of the Freedom of Information Law.

While the Law does not preclude an agency from developing a
standard form, as suggested earlier, I do not believe that a
failure to use such a form can be used to delay a response to a
written request for records reasonably described beyond the
statutory period. However, a standard form may, in my opinion, be
utilized so long as it does not prolong the time limitations
discussed above. For instance, a standard form could be completed
by a requester while his or her written request is timely processed
by the agency. In addition, an individual who appears at a
government office and makes an oral request for records could be
asked to complete the standard form as his or her written request.

In sum, it is my opinion that the use of standard forms is
inappropriate to the extent that is unnecessarily serves to delay
a response to or deny a request for records.

Second, with respect to the disclosure of payroll or salary
lists including the names of employees, I point out that the
Freedom of Information Law as originally enacted in 1974 required
only that titles and salaries of law enforcement agency employees
be disclosed; their names did not have to be included in a payroll
list. However, that version of the Freedom of Information Law was
repealed and replaced with the current Freedom of Information Law,
which became effective in 1978. Further, subject to one
qualification, I believe that the titles and salaries, as well as
the names of all public employees must be disclosed.

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.

One of the grounds for denial, §87(2)(b), 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, subject to the following qualification, a record
identifying agency employees by name, public office address, title
and salary must in my view be maintained and made available.

In my opinion, the only exception to rights of access that
could appropriately be cited with respect to the payroll record is
§87(2)(f). The cited provision states that an agency may withhold
records or portions of records when disclosure would "endanger the
life or safety of any person." In my view, disclosure of the
identities of municipal employees, including law enforcement
officers, would not in most instances endanger their lives or
safety. In rare circumstances in which a law enforcement agency
has engaged employees in undercover positions, for example,
§87(2)(f) might be cited with justification as a basis for deleting
those portions of a payroll record that identify such individuals.
Other than in that rare situation, I believe that the payroll
record required to be maintained pursuant to §87(3)(b) must be made
available.

Lastly, you questioned the extent to which attorney's fees may
be awarded. In this regard, §89(4)(c) of the Freedom of
Information Law states that:

"The court in such a proceeding may assess,
against such agency involved, reasonable
attorney's fees and other litigation costs
reasonably incurred by such person in any case
under the provisions of this section in which
such person has substantially prevailed,
provided, that such attorney's fees and
litigation costs may be recovered only where
the court finds that:

i. the record involved was, in fact, of
clearly significant interest to the general
public: and

ii. the agency lacked a reasonable basis in
law for withholding the record."

I point out that there is a decision in which the issue was
whether a person representing himself who was not an attorney was
eligible for an award of attorney's fees. In Leeds v. Burns
(Supreme Court, Queens County, NYLJ, July 27, 1992), the petitioner
was a law student who brought a proceeding against the Dean of the
City University of New York Law School at Queens College pro se
under the Freedom of Information Law. He prevailed and requested
attorney's fees. The court found that he met all of the conditions
prescribed in §89(4)(c), except one. In short, the court found
that he was an "aspiring attorney" but not yet a licensed attorney,
and that, therefore, attorney's fees would not be awarded. On the
basis of that decision, it appears that one must be or represented
by a licensed attorney in order to be eligible for an award of
attorney's fees under §89(4)(c).

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Captain Patrick J. Brophy