NY.gov Portal State Agency Listing

 

October 20, 1994

 

 

Mr. Loren Eddy
Thurman Citizens Association
PO Box 149
Athol, NY 12810

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 Mr. Eddy:

I have received your correspondence in which you sought my comments concerning a denial of access by the Town of Thurman to a copy of "the current highway employees union contract."

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.

Second, contracts, bills, vouchers, receipts and similar records reflective of expenses incurred by an agency or payments made to an agency's staff must generally be disclosed, for none of the grounds for denial could appropriately be asserted to withhold those kinds of records. From my perspective, a collective bargaining or similar agreement between an agency and its employees would clearly be available. Likewise, in my opinion, a contract between an administrator and an agency must be disclosed under the Freedom of Information Law. It is noted that there is nothing in the statute Law that deals specifically with personnel records or personnel files.

Although two of the grounds for denial are relevant to an analysis of the matter, neither would in my view justify a denial of access. Section 87(2)(b) permits an agency to withhold records 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].

I point out that §87(3)(b) of the Freedom of Information Law requires that each agency must maintain and make available a record that identifies every officer or employee of an agency by name, public office address, title and salary. A contract consisting of similar information would in my view be available, even though individuals' salaries could be ascertained.

The other provision of possible relevance is §87(2)(c), which enables an agency to withhold records to the extent that disclosure would "impair present or imminent contract awards or collective bargaining negotiations." In a case decided by the Court of Appeals, the State's highest court, the facts involved rights of access to a compilation of salary and fringe benefit data concerning teachers and school district administrators from a number of school districts. The data was prepared based upon the terms of a series of collective bargaining agreements, contracts and related records indicating the salaries and benefits of school district officials. Although it was contended that the records could be withheld pursuant to §87(2)(c), the Court of Appeals found that there was no basis for denial [Doolan v. BOCES, 48 NY 2d 341 (1979)]. The records that were used in the preparation of the data in Doolan, collective bargaining contracts, were available, individually, from the school districts that participated in the study. The fact that collective bargaining negotiations might have been conducted within a district or districts did not permit an agency to withhold a contract then in force or information apparently derived from such a contract.

For the reasons expressed above, I believe that any contract between an agency and one or more public employees must be disclosed.

As you requested and in an effort to enhance compliance with and understanding of the Freedom of Information Law, a copy of this opinion will be forwarded to the Town Clerk.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Town Clerk