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August 1, 1994

 

 

Ms. Debra Mastroeni
Village Clerk
Village of Airmont
321 Route 59, PO Box 578
Airmont, NY 10982

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Ms. Mastroeni:

I have received your letter of July 22 in which you raised the following questions concerning the Freedom of Information Law:

"1. Does a Mayor have the right to take a personnel file of an employee and make copies of it and remove the copies from Village Hall.

2. Does a Mayor have the right to give an employees file to another employee, have that employee go through the file and make copies of the file to give to the Mayor for him to take home.

3. If a F.O.I.L. request is made for copies of employee paychecks, can the amount of the checks be blocked out due to the fact that deductions have been taken out."

Questions 1 and 2 will be considered together, for they involve essentially the same issue.

In this regard, first, the Freedom of Information Law does not deal directly the right of a mayor to gain access to village records, make copies or take them home. I am unaware of any statute that deals specifically with requests by or disclosures to members of Village boards of trustees or any unique authority that a mayor or board members enjoy, individually, concerning their capacity to obtain copies of village records. However, in my opinion, the records are the property of the Village rather than a mayor, even though the mayor may be the chief executive officer.

For purposes of the Freedom of Information Law, the term "record" is defined in §86(4) of that statute to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Additionally, the "Local Government Records Law", Article 57-A of the Arts and Cultural Affairs Law, deals with the management, custody, retention and disposal of records by local governments. For purposes of those provisions, §57.17(4) of the Arts and Cultural Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other information-recording device, regardless of physical form or characteristic, that is made, produced, executed, or received by any local government or officer thereof pursuant to law or in connection with the transaction of public business. Record as used herein shall not be deemed to include library materials, extra copies of documents created only for convenience of reference, and stocks of publications."

Based on both provisions quoted above, the records in question are the property of the Village; I do not believe that a mayor may treat them as he or she see fit. Further, §57.25 of the Arts and Cultural Affairs Law states in relevant part that:

"1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government's records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office..."

As such, a local officer, such as a mayor, must in my view "adequately protect" village records. Further, §57.19 of the Arts and Cultural Affairs Law specifies that the village clerk is the records management officer in a village.

Second, from my perspective, the Freedom of Information Law is intended to enable the public to request and obtain accessible records. Further, it has been held that accessible records should be made equally available to any person, without regard to status or interest [see e.g., Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman & Sons v. New York City, 62 NY 2d 75 (1984)]. Nevertheless, if it is clear that records are requested in the performance of one's official duties, the request might not be viewed as having been made under the Freedom of Information Law. In such a situation, if a request is reasonable, and in the absence of a board rule or policy to the contrary, I believe that a mayor or member of the board should not generally be required to resort to the Freedom of Information Law in order to seek or obtain records.

However, viewing the matter from a more technical perspective, one of the functions of a public body involves acting collectively, as an entity. A board of trustees, as the governing body of a public corporation, generally acts by means of motions carried by an affirmative vote of a majority of its total membership (see General Construction Law, §41). In my view, in most instances, a board, including a mayor, member acting unilaterally, without the consent or approval of a majority of the total membership of the board, has the same rights as those accorded to a member of the public, unless there is some right conferred upon a board member by means of law or rule. In such a case, a member seeking records could presumably be treated in the same manner as the public generally.

In short, village records are not the property of the mayor, and I do not believe that a mayor, when that person is not acting in the performance of his or her official duties, has the right to obtain and make copies of all village records. Particularly in the case of personnel files, there may be a variety of information which if disclosed would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §§87(2)(b) and 89(2)]. Social security numbers, medical information, names of beneficiaries for insurance purposes, unsubstantiated complaints and similar records could in my opinion be withheld from the public based on considerations of privacy. While some of those items might in some instances be properly reviewed by a mayor or the board of trustees, again, such disclosures would presumably be made in conjunction with the performance of their official duties, not based on personal interest or curiosity.

With respect to copies of employee paychecks, as you are likely aware, 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. From my perspective, the question is whether disclosure of the amount appearing on a paycheck, if deductions have been made, would constitute an unwarranted invasion of personal privacy.

Although subjective judgments must often of necessity be made when questions concerning privacy arise, the courts have provided substantial direction regarding the privacy of public employees. First, it is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others. Second, with regard to records pertaining to public employees, the courts have found that, as a general rule, records that are relevant to the performance of a public employee' s 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); 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].

I point out that §87(3)(b) of the Freedom of Information Law requires that each agency maintain and make available a payroll list, "a record setting forth the name, public office address, title and salary of every officer or employee of the agency." In addition, it has been held that portions of W-2 forms identifying public employees and indicating their gross wages must be disclosed (Day v. Town of Milton, Supreme Court, Saratoga County, April 27, 1992). As such, records indicating salaries or gross wages of public employees are, in my view, clearly available. Nevertheless, there may be items on payroll or related records that could in my opinion be withheld on the ground that disclosure would result in an unwarranted invasion of personal privacy. For example, in Minerva v. Village of Valley Stream (Supreme Court, Nassau County, May 20, 1981), the request involved both the front and the back sides of a check made out to a village attorney. The court found that the back side of the check could be withheld, stating that the public may have the right to know of the receipt of monies by a public employee, "but not how he disposes of his lawful salary or fees." How that person spends his paycheck is irrelevant to the performance of his official duties. Similarly, portions of records indicating the number of exemptions claimed, contributions to charity and the like could in my view be withheld in conjunction with §87(2)(b), for those kinds of information are irrelevant to the performance of one's official duties.

In Minerva, although it was found that the front of a check made payable to attorney was available, it is unclear whether he was an employee who had deductions taken or whether the figure on the check indicated gross pay. In my opinion, when a public employee's paycheck indicates an amount after deductions have been made for any number of reasons, it is likely that the amount appearing on the check could be withheld. That figure would not represent the employee's salary or gross pay, both of with would be public; rather it would reflect, without specification, what would remain after what may be a series of personal decisions (i.e., claiming exemptions, choice of health insurance, payment of life insurance premiums, direct deposit into a bank account, purchase of savings bonds, etc.) that have no relationship to the performance of the employee's governmental duties.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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