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May 11, 1994

 

 

Mr. Robert W. Zaleski
President
Hicksville Congress of Teachers
79 W. Old Country Road
Hicksville, NY 11801

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. Zaleski:

I have received your letter of April 5 and the correspondence
attached to it.

Having requested attendance record concerning various
categories of teachers from the Hicksville School District, you
were informed that those records "are part of an individual's
personnel records and are, therefore, confidential and not able to
be released."

You have asked whether the records in question are available
under the Freedom of Information Law and whether a collective
bargaining agreement can restrict disclosure of the records. 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.

I point out that there is nothing in the Freedom of
Information Law that deals specifically with personnel records or
personnel files. Further, the nature and content of so-called
personnel files may differ from one agency to another, and from one
employee to another. In any case, neither the characterization of
documents as "personnel records" nor their placement in personnel
files would necessarily render those documents "confidential" or
deniable under the Freedom of Information Law (see Steinmetz v.
Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ,
Oct. 30, 1980). On the contrary, the contents of those documents
serve as the relevant factors in determining the extent to which
they are available or deniable under the Freedom of Information
Law.

Moreover, it has been held that a promise or assertion of
confidentiality cannot be upheld, unless a statute specifically
confers confidentiality. In Gannett News Service v. Office of
Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a
state agency guaranteed confidentiality to school districts
participating in a statistical survey concerning drug abuse. The
court determined that the promise of confidentiality could not be
sustained, and that the records were available, for none of the
grounds for denial appearing in the Freedom of Information Law
could justifiably be asserted. In a decision rendered by the Court
of Appeals, it was held that a state agency's:

"long-standing promise of confidentiality to
the intervenors is irrelevant to whether the
requested documents fit within the
Legislature's definition of 'record' under
FOIL. The definition does not exclude or make
any reference to information labeled as
'confidential' by the agency; confidentiality
is relevant only when determining whether the
record or a portion of it is exempt..."
[Washington Post v. Insurance Department, 61
NY 2d 557, 565 (1984)].

In my opinion, insofar as a contract is inconsistent with or
diminishes public rights of access conferred by a statute, such as
the Freedom of Information Law, it would be unenforceable.
Therefore, if records are available to the public under the Freedom
of Information Law, the terms of a contract could not in my view
reduce those rights.

Second, although two of the grounds for denial relate to
attendance records or time sheets, 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 records could be characterized as "intra-agency
materials." However, those portions reflective of dates or figures
concerning the use 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), unless a different
ground could be asserted.

Also 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)].

In a decision dealing with attendance records that was
affirmed by the State's highest court, the Court of Appeals, 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.

Lastly, in affirming the Appellate Division decision in
Capital Newspapers, 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).

Based on the preceding analysis, it is clear in my view that
attendance records must be disclosed under the Freedom of
Information Law.

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to the District.

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: Daniel P. Kremin, Assistant Superintendent for Personnel