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  June 2, 1994

 

 

Mr. Nicholas J. Selvaggio
171 Cedrus Avenue
East Northport, NY 11731

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. Selvaggio:

I have received your letter of April 29 and the correspondence
attached to it.

According to the materials, having requested records
reflective of gross wages of employees of the Commack Union Free
School District, you were informed that redacted copies of W-2
forms would be disclosed. However, the District denied your
request for information indicating employees' deferred compensation
on the ground that disclosure would constitute an unwarranted
invasion of personal privacy. It is your contention that
disclosure of "the wage data without the deferred compensation data
is a distortion and incomplete total wage compensation expenditure
report." As I understand your remarks, the information that the
District has agreed to disclose does not indicate actual payments
made to many employees, for the employees may choose to defer
compensation. When they do so, disclosure of the figure indicating
gross wages, which does not include the amount of deferred
compensation, serves as an inaccurate representation of the
District's actual compensation of employees. Consequently, you
have questioned the propriety of the denial

From my perspective, the issue is whether disclosure of the
information in question would constitute an "unwarranted invasion
of personal privacy" pursuant to §§87(2)(b) and 89(2) of the
Freedom of Information Law.

In this regard, with certain qualifications, I believe that W-2 forms or records containing equivalent information must be
disclosed. In terms of rights of access, 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.

Although tangential to your inquiry, I point out that
§87(3)(b) of the Freedom of Information Law 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, 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
operational 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)].

Based on the foregoing, a record identifying agency employees by
name, public office address, title and salary must in my view be
maintained and made available.

It has been contended that W-2 forms are specifically exempted
from disclosure by statute on the basis of 26 USC 6103 (the
Internal Revenue Code) and §697(e) of the Tax Law. In my opinion,
those statutes are not applicable in this instance. In an effort
to obtain expert advice on the matter, I contacted the Disclosure
Litigation Division of the Office of Chief Counsel at the Internal
Revenue Service to discuss the issue. I was informed that the
statutes requiring confidentiality pertain to records received and
maintained by the Internal Revenue Service; those statutes do not
pertain to records kept by an individual taxpayer [see e.g.,
Stokwitz v. Naval Investigation Service, 831 F.2d 893 (1987)], nor
are they applicable to records maintained by an employer, such as
a school district. In short, the attorney for the Internal Revenue
Service said that the statutes in question require confidentiality
only with respect to records that it receives from the taxpayer.

In conjunction with the previous commentary concerning the
ability to protect against unwarranted invasions of personal
privacy, I believe that portions of W-2 forms could be withheld,
such as social security numbers, home addresses and net pay, for
those items are largely irrelevant to the performance of one's
duties. However, for reasons discussed earlier, those portions
indicating public officers' or employees' names and gross wages
must in my view be disclosed. Further, in a recent decision, the
same conclusion was reached, and the court cited an advisory
opinion rendered by this office (Day v. Town of Milton, Supreme
Court, Saratoga County, April 27, 1992).

In many contexts, public rights of access have been determined
in consideration of whether an item of personal information is
relevant to the performance of a public officer's or employee's
duties. In two decisions, Matter of Wool (Supreme Court, Nassau
County, NYLJ, November 22, 1977) and Minerva v. Village of Valley
Stream (Supreme Court, Nassau County, May 20, 1981), the issue
involved disclosure of information concerning the manner in which
public officers and employees choose to spend their money. In
Wool, the issue involved a request for a record indicating salaries
of certain public employees, as well as notations of deductions
made for payment of union dues. The court held that salary
information is clearly available, but that the information
involving the payment of union dues could be withheld, stating that
"[m]embership in the CSEA has no relevance to an employee's on the
job performance or to the functioning of his or her employer." In
Minerva, the request involved both sides of checks paid by a
municipality to its attorney. While the court held that the front
side of the checks must be disclosed, it found that the backs of
checks indicating "how he disposes of his lawful salary or fees"
could be withheld as an unwarranted invasion of personal privacy.

If the test to be used is whether items of information
identifiable to public officers and employees are relevant to the
performance of their official duties, I believe that the
information sought could be withheld. Whether a public officer or
employee chooses to defer compensation in my opinion has no
relevance to the performance of that person's official duties.

Nevertheless, perhaps that should not be the only "test" for
determining rights of access to records identifiable to public
officers and employees. As suggested earlier, the standard in the
Freedom of Information Law, "unwarranted invasion of personal
privacy", is subject to a variety of considerations and points of
view, and the language of the law in applying that standard is
flexible. A countervailing argument, vis à vis the test described
above and my view of extant case law regarding the privacy of
public employees, arises in the language of a decision rendered by
the Court of Appeals cited earlier. In Capital Newspapers v.
Burns, supra, the issue involved records reflective of the days and
dates of sick leave claimed by a particular police officer. The
Appellate Division, as I interpret its decision, held that those
records were clearly relevant to the performance of the officer's
duties, for the Court found that:

"One of the most basic obligations 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..." [109 AD 2d 92, 94-95
(1985)].

Perhaps more importantly, in a statement concerning the intent and
utility of the Freedom of Information Law, the Court of Appeals
affirmed and 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 commentary offered by the State's
highest court, it might appropriately be contended that the need to
enable the public to make informed choices and provide a mechanism
for exposing waste or abuse must be balanced against the possible
infringement upon the privacy of a public officer or employee. The
magnitude of an invasion of privacy is conjectural and must in many
instances be determined subjectively. In this instance, if a court
found the invasion of one's privacy to be substantial, it might be
determined that the interest in protecting privacy outweighs the
interest in identifying employees who defer compensation. On the
other hand, in conjunction with the direction provided by the Court
of Appeals in the passage quoted earlier, it might be determined
that the information sought should be disclosed in view of the
public's significant interest in knowing the amount of public
monies being expended.

In consideration of the factors that have been discussed, if
indeed references to deferred compensation essentially represent
payments made to public employees and expenditures of public
monies, even though those references are not reported as gross
wages, I believe that they should be disclosed. To find that items
reflective of public employees' compensation are not available
would, in my opinion, be inconsistent with the overall thrust of
the Freedom of Information Law and its judicial interpretation. If
my understanding of the matter is correct, references to deferred
compensation are not analogous to deductions from one's wages but
rather additions to wages. So long as there is no indication of
how deferred compensation is invested, allocated or used, on
balance, it would appear that the invasion of a public employee's
privacy by means of disclosure would not be so significant or
"unwarranted" as to outweigh the public's interest of knowing of
the expenditure of taxpayers' money.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Dr. Joseph J. DelRosso
Tess Falcetta