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April 28, 1994

 

 

Ms. Mary Jo Hill
Syracuse Newspapers
18 Canalview Mall
Fulton, NY 13069

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 Ms. Hill:

As you are aware, I have received your letter of March 28 and
the materials attached to it.

You have sought an advisory opinion concerning rights of
access to records pertaining to police officers, as well as records
relating to "offense reports." You indicated that two aspects of
your requests involve payroll records and time sheets, and that the
City of Oswego does not want to disclose those records because they
include "personal information."

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. It is
emphasized that the introductory language of §87(2) refers to the
authority to withhold "records or portions thereof" that fall
within the grounds for denial that follow. The phrase quoted in
the preceding sentence in my opinion indicates that single record
or report might consist of both accessible and deniable
information; it also indicates that an agency must review records
sought, in their entirety, to determine which portions, if any, may
justifiably be withheld. If there are portions of records that
fall within one or more of the grounds for denial, those portions
may be deleted, and the remainder of the records must be disclosed.

Second, although two of the grounds for denial relate to
attendance records or time sheets, as well as payroll records,
based upon the language of the Law and its judicial interpretation,
I believe that such records are generally available.

Of significance is §87(2)(g), which permits an agency to
withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

Attendance and payroll records could be characterized as
"intra-agency materials." However, those portions reflective of
dates or figures concerning the issue of leave time or absences,
the times that employees arrive at or leave work, or which identify
employees by name and salary would constitute "statistical or
factual" information accessible under §87(2)(g)(i).

I point out that, 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 and other related records identifying
employees and payments made to them, as well as attendance records,
must be disclosed.

Of relevance is §87(2)(b), which 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)]. In Gannett, supra, 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.

With regard to time sheets or attendance records, in a
decision pertaining to a particular police officer and records
indicating the day and dates he claimed as sick leave, which was
affirmed by the State's highest court, it was found, in essence,
that disclosure would result in a permissible rather than an
unwarranted invasion of personal privacy. Specifically, the
Appellate Division found that:

"One of the most basic obligation 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)].

Insofar as attendance records or time sheets include reference
to reasons for an absence, it has been advised that an explanation
of why sick time might have been used, i.e., a description of an
illness or medical problem found in records, could be withheld or
deleted from a record otherwise available, for disclosure of so
personal a detail of a person's life would likely constitute an
unwarranted invasion of personal privacy and would not be relevant
to the performance of an employee's duties. A number, however,
which merely indicates the amount of sick time or vacation time
accumulated or used, or the dates and times of attendance or
absence, would not in my view represent a personal detail of an
individual's life and would be relevant to the performance of one's
official duties. Therefore, I do not believe that §87(2)(b) could
be asserted to withhold that kind of information contained in an
attendance record.

In sum, I believe that payroll records, time sheets,
attendance and similar records pertaining to public employees,
including police officers, must be disclosed, subject to the
qualifications described above.

With regard to other kinds of records relating to police
officers, a statute other than the Freedom of Information Law would
likely be relevant. The initial ground for denial, §87(2)(a),
pertains to records that "are specifically exempted from disclosure
by state or federal statute." One such statute is §50-a of the
Civil Rights Law. In brief, that statute provides that personnel
records of police and correction officers that are used to evaluate
performance toward continued employment or promotion are
confidential. The Court of Appeals, in reviewing the legislative
history leading to its enactment, has held that §50-a is not a
statute that exempts records from disclosure when a request is made
under the Freedom of Information Law in a context unrelated to use
of the records in litigation. More specifically, in a case brought
by a newspaper dealing with sick leave records that was discussed
earlier, it was found that:

"Given this history, the Appellate Division
correctly determined that the legislative
intent underlying the enactment of Civil
Rights Law section 50-a was narrowly specific,
'to prevent time-consuming and perhaps
vexatious investigation into irrelevant
collateral matters in the context of a civil
or criminal action' (Matter of Capital
Newspapers Div. of Hearst Corp. v. Burns, 109
AD 2d 92, 96). In view of the FOIL's
presumption of access, our practice of
construing FOIL exemptions narrowly, and this
legislative history, section 50-a should not
be construed to exempt intervenor's 'Lost Time
Record' from disclosure by the Police
Department in a non-litigation context under
Public Officers section 87(2)(a)" (Capital
Newspapers v. Burns, supra, 569).

It was also found that the exemption from disclosure conferred by
§50-a of the Civil Rights Law "was designed to limit access to said
personnel records by criminal defense counsel, who used the
contents of the records, including unsubstantiated and irrelevant
complaints against officers, to embarrass officers during cross-examination" (id. at 568).

In another decision that dealt with unsubstantiated complaints
against correction officers, the Court of Appeals held that the
purpose of §50-a "was to prevent the release of sensitive personnel
records that could be used in litigation for purposes of harassing
or embarrassing correction officers" [Prisoners' Legal Services v.
NYS Department of Correctional Services, 73 NY 2d 26, 538 NYS 2d
190, 191 (1988)].

In terms of the judicial interpretation of the Freedom of
Information Law, I point out that in situations in which
allegations or charges have resulted in the issuance of a written
reprimand, disciplinary action, or findings that public employees
have engaged in misconduct, records reflective of those kinds of
determinations have been found to be available, including the names
of those who are the subjects of disciplinary action [see Powhida
v. City of Albany, 147 AD 2d 236 (1989); also Farrell v. Village
Board of Trustees, 372 NYS 2d 905 (1975), Geneva Printing Co. and
Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March
25, 1981, Scaccia v. NYS Division of State Police, 530 NYS 2d 309,
138 AD 2d 50 (1988) and Sinicropi v. County of Nassau, 76 AD 2d 838
(1980)]. Three of those decisions, Powhida, Scaccia and Farrell,
involved findings of misconduct concerning police officers.
Further, Scaccia dealt specifically with a determination by the
Division of State Police to discipline a state police investigator.
In that case, the Court rejected contentions that the record could
be withheld as an unwarranted invasion of personal privacy or on
the basis of §50-a of the Civil Rights Law.

It is also noted, however, that in Scaccia, it was found that
although a final determination reflective of a finding of
misconduct is public, the records leading to the determination
could be withheld. Further, when allegations or charges of
misconduct have not yet been determined or did not result in
disciplinary action, the records relating to such allegations may,
in my view, be withheld, for disclosure would result in an
unwarranted invasion of personal privacy [see e.g., Herald Company
v. School District of City of Syracuse, 430 NYS 2d 460 (1980)].
Therefore, to the extent that charges are dismissed or allegations
are found to be without merit, I believe that the records related
to and including such charges or allegations may be withheld.

In the context of your questions, if an officer was placed on
administrative leave due to the pendency of disciplinary charges,
I believe that the charges could be withheld under §50-a of the
Civil Rights Law. However, records reflective of the fact that a
police officer is on leave, the dates of leave time and payments
made would in my opinion, and for the reasons discussed previously,
be available.

Lastly, with respect to "offense reports" and other kinds of
police records, the extent to which they must be disclosed or may
be withheld would be dependent upon their contents, the effects of
disclosure, and perhaps other factors. Often those reports may be
accessible under the Law. However, in other instances those
records or portions of them may be withheld in conjunction with the
ensuing considerations that are presented as examples or
illustrations.

Section 87(2)(a), as indicated earlier, deals with records
that are exempted from disclosure by state. One such statute is
§160.50 of the Criminal Procedure Law, which generally requires
that records relating to an arrest be kept confidential when
charges have been dismissed in favor of an accused. Therefore, if
reports relate to an incident in which a person was charged but the
charge was later dismissed, the reports would likely be sealed.
Other instances in which statutes might prohibit disclosure would
involve police reports pertaining to juveniles (see Family Court
Act, §784) or persons adjudicated as youthful offenders (see
Criminal Procedure Law, §720.35).

Perhaps most important in relation to records pertinent to a
law enforcement investigation is §87(2)(e) of the Freedom of
Information Law. That provision permits an agency to withhold
records that:

"are compiled for law enforcement purposes and
which, if disclosed, would:

i. interfere with law enforcement
investigations or judicial proceedings;

ii. deprive a person of a right to a fair
trial or impartial adjudication;

iii. identify a confidential source or
disclose confidential information relating to
a criminal investigation; or

iv. reveal criminal investigative techniques
or procedures, except routine techniques and
procedures."

It is emphasized that not all records used, reviewed or relevant to
an investigation might have been compiled for law enforcement
purposes; some might have been prepared in the ordinary course of
business. For example, books of account, ledgers, bills, minutes
of meetings and similar documents might be relevant to an
investigation. Those kinds of records, however, would be prepared
independent of an investigation, and I do not believe that
§87(2)(e) could be asserted to withhold those kinds of records. In
a situation in which minutes of meetings of a village board of
trustees were transferred to a district attorney pursuant to a
grand jury subpoena and were later requested by the village clerk,
the subject of the investigation, it was found that those records
were available, for they could not be characterized as having been
"compiled for law enforcement purposes" (King v. Dillon, Supreme
Court, Nassau County, December 19, 1984).

To the extent that the records are compiled for law
enforcement purposes, an agency may withhold them only to the
extent that the harmful effects described in subparagraphs (i)
through (iv) of §87(2)(e) would arise by means of disclosure. With
respect to §87(2)(e)(iii), if records identify confidential
sources, for example, names or other identifying details could be
deleted. Moreover, to qualify as a confidential source, it has
been held that an individual must have been given a promise of
confidentiality. In a case involving records maintained by the New
York City Police Department relating to a sexual assault, it was
held that:

"NYPD has failed to meet its burden to
establish that the material sought is exempt
from disclosure. While NYPD has invoked a
number of exemptions with might justify its
failure to supply the requested information,
it has failed to specify with particularity
the basis for its refusal...

"As to the concern for the privacy of the
witnesses to the assault, NYPD has not alleged
that anyone was promised confidentiality in
exchange for his cooperation in the
investigation so as to qualify as a
'confidential source' within the meaning of
the statute (Public Officers Law
§87[2][e][iii]" [Cornell University v. City of
New York Police Department, 153 AD 2d 515, 517
(1989); motion for leave to appeal denied, 72
NY 2d 707 (1990); see also, Laureano v.
Grimes, 579 NYS 2d 357, 79 AD 2d 600 (1992)].

Also of potential significance is §87(2)(b), which authorizes
an agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy". Where
appropriate, names or other identifying details could be deleted
from records that would otherwise be available to protect against
unwarranted invasions of personal privacy [see Freedom of
Information Law, §89(2)(a)].

Another ground for denial of possible relevance is §87(2)(g),
which was discussed earlier.

Lastly, it is emphasized that the courts have consistently
interpreted the Freedom of Information Law in a manner that fosters
maximum access. As stated by the Court of Appeals more than decade
ago:

"To be sure, the balance is presumptively
struck in favor of disclosure, but in eight
specific, narrowly constructed instances where
the governmental agency convincingly
demonstrates its need, disclosure will not be
ordered (Public Officers Law, section 87, subd
2). Thus, the agency does not have carte
blanche to withhold any information it
pleases. Rather, it is required to articulate
particularized and specific justification and,
if necessary, submit the requested materials
to the courts for in camera inspection, to
exempt its records from disclosure (see Church
of Scientology of N.Y. v. State of New York,
46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of
one of these statutory exemptions may
disclosure be withheld" [Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held
that:

"Exemptions are to be narrowly construed to
provide maximum access, and the agency seeking
to prevent disclosure carries the burden of
demonstrating that the requested material
falls squarely within a FOIL exemption by
articulating a particularized and specific
justification for denying access" [Capital
Newspapers v. Burns, supra, 566 (1986); see
also, Farbman & Sons v. New York City, 62 NY
2d 75, 80 (1984); and Fink v. Lefkowitz,
supra].

Moreover, in the same decision, in a statement regarding the intent
and utility of the Freedom of Information Law, it was 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"
(id., 565-566).

As you requested, and in an effort to enhance compliance with
and understanding of the Freedom of Information Law, copies of this
opinion will be forwarded to the City of Oswego officials
identified in your letter.

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:jm
cc: Hon. Terrence Hammill, Mayor
Ann Smegelsky, Records Access Officer