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April 5, 1994

 

 

Mr. Harvey Elentuck
139-15 83 Avenue
Jamaica, NY 11435

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. Elentuck:

As you are aware, I have received your letter of March 1 and
the materials attached to it.

You wrote that the City of New York "has a policy of releasing
the names and SS #'s of City employees on request", and that
certain officials of the Board of Education are "apparently upset"
that you obtained their social security numbers. Specifically,
Bruce K. Gelbard, Secretary to the Board, indicated to you that
"obtaining and then including Board of Education employees Social
Security Numbers on a document is illegal", and added that those
items are "private".

You have sought my views on the matter. 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 concerning
social security numbers is §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, 607 NYS 2d 300, ___
AD 2d___ (1994)].

Second, even though a local government agency, i.e., the City
of New York, 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, while I believe that a local government agency may
withhold its employees' social security numbers, neither the
Freedom of Information Law nor any other statute of which I am
aware would prohibit such an agency from disclosing employees'
social security numbers.

In short, while a local government agency's practice or policy
of disclosing employees' social security numbers is, from my
perspective, questionable, I do not believe that your acquisition
of social security numbers or the agency's disclosure of them could
be characterized as "illegal". Moreover, once you obtain them, I
know of no provision of law that would preclude you from using them
as you did in the correspondence attached to your letter.

It is noted that the continual references to a local
government agency have been made purposefully, for a state agency
cannot, in my opinion, disclose employees' social security numbers,
except in unusual circumstances authorized by the Personal Privacy
Protection Law. That statute precludes a state agency from
disclosing personal information about a "data subject", unless
disclosure is permitted pursuant to exceptions authorizing
disclosure that appear in §96(1) of the Law. A "data subject" is
"any natural person about whom personal information has been
collected by an agency" [Personal Privacy Protection Law, §92(3)].
"Personal information" is defined to mean "any information
concerning a data subject which, because of name, number, symbol,
mark or other identifier, can be used to identify that data
subject" [§92(7)]. For purposes of the Personal Privacy Protection
Law, the term "record" is defined to mean "any item, collection or
grouping of personal information about a data subject which is
maintained and is retrievable by use of the name or other
identifier of the data subject" [§92(9)].

As the foregoing relates to the Freedom of Information Law,
§89(2-a) of that statute states that:

"Nothing in this article [the Freedom of
Information Law] shall permit disclosure which
constitutes an unwarranted invasion of
personal privacy as defined in subdivision two
of this section if such disclosure is
prohibited under section ninety-six of this
chapter."

Consequently, when the Freedom of Information Law and the Personal
Privacy Protection Law are read in conjunction with one another, a
state agency cannot release records when disclosure would result in
an unwarranted invasion of personal privacy, unless disclosure is
otherwise permitted by §96. Therefore, assuming that disclosure
would constitute an unwarranted invasion of personal privacy, and
I believe that it would with respect to public employees' social
security numbers for reasons described earlier, a state agency
ordinarily could not disclose them.

As indicated earlier, the Personal Privacy Protection Law is
applicable only to state agencies. For purposes of that statute,
§92(1) defines the term "agency" to mean:

"any state board, bureau, committee,
commission, council, department, public
authority, public benefit corporation,
division, office or any other governmental
entity performing a governmental or
proprietary function for the state of New
York, except the judiciary or the state
legislature or any unit of local government
and shall not include offices of district
attorneys."

Based on the foregoing, the Personal Privacy Protection Law
excludes from its coverage "any unit of local government", such as
a city or a board of education. Consequently, the Personal Privacy
Protection Law would not be applicable or serve as a barrier to
disclosure of records maintained by a unit of local government (see
Seelig, supra).

Your remaining area of inquiry pertains to responses by the
Board of Education in which you were advised to seek records from
other sources. In my view, if an agency maintains requested
records, it is obliged by the Freedom of Information Law to grant
or deny access to those records in accordance with §87(2) of that
statute. In some instances, i.e., if one agency's records are kept
in a storage facility while a second agency maintaining the same
records can readily retrieve them, it would not be inappropriate in
my opinion for the former to suggest that the records may be made
available more efficiently by the latter.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Bruce K. Gelbard, Secretary
Ed Stancik, Special Commissioner