April 30, 2002
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.
I have received your letter of April 3 and the materials attached to it. You wrote that your request for certified payrolls was denied by Cayuga County, and that you could "understand the reason for denying employees' names, addresses, social security numbers and race..." However, you questioned the denial of access to portions of the records indicating deductions for each employee.
So long as personally identifying details are deleted from the records in question, I believe that the remainder of the records must be disclosed. 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 scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
Second, assuming that the certified payroll records include a contractor's employees' names, addresses, social security numbers and their wages, I believe that those portions of the records could properly be withheld pursuant to §87(2)(b). That provision permits an agency to withhold records or portions thereof when disclosure would constitute "an unwarranted invasion of personal privacy", and §89(2)(a) authorizes an agency to delete identifying details to protect against an unwarranted invasion of personal privacy when it makes records available. In addition, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy, one of which pertains to:
"disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintained it...[§89(2)(b)(iv)].
In my opinion, what is relevant to an agency is whether the employees are being paid in accordance with prevailing wage standards; their names, addresses and social security numbers are largely irrelevant to that issue and may in my view be deleted to protect against an unwarranted invasion of personal privacy.
It is noted that an Appellate Division decision affirmed the findings of the Supreme Court in a case involving a situation in which a union sought home addresses of an agency's contractors' employees for the purpose of "monitoring and prosecution of prevailing wage law violations." The court found that the employees' home addresses could be withheld, stating that the applicant's "entitlement to access does not necessarily entitle it to the reports in their entirety. Indeed portions of the report made available to petitioner should be expunged to protect (the) privacy of the employees" [Joint Industry Board of the Electrical Industry v. Nolan, Supreme Court, New York County, May 1, 1989; affirmed 159 AD 2d 241 (1990)].
In sum, I believe that portions of the records reflective of the titles, duties, wages, hours worked and similar data must be disclosed, but that personally identifiable details pertaining to a contractor's employees may be deleted or redacted from the records prior to disclosure.
In the context of your question, if personally identifiable details are deleted, i.e., names, addresses and social security numbers, I believe that the remainder of the records, including data regarding deductions, must be disclosed. Absent those details, the identities of employees could not be ascertained. I note that §89(2)(c)(i) of the Freedom of Information Law specifies that disclosure would not constitute an unwarranted invasion of personal privacy "when identifying details are deleted."
Copies of this opinion will be forwarded as you requested.
I hope that I have been of assistance.
Robert J. Freeman
cc: Riccardo Galbato