August 10, 1993
Mr. Steve Coffman
          Finger Lake Times
          218 Genesee Street
          P.O. Box 393
          Geneva, N.Y. 14456
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. Coffman:
 I have received your letter of August 9 in which you requested an
          advisory opinion concerning the Freedom of Information Law.
 The correspondence attached to your letter indicates that you
          requested "records or portions thereof pertaining to the time
          sheets
          filed in 1993 by special annual employees for state Senators Michael
          F.
          Nozzolio and John 'Randy' Kuhl." The request was denied.
In this regard, I offer the following comments.
 First, I point out that §88 of the Freedom of Information Law
          deals
          with rights of access to records of the State Legislature. Further,
          while there have been numerous judicial decisions concerning rights
          of
          access to agency records in accordance with provisions applicable to
          agencies, there are few decisions that have been rendered with respect
          to access to records of the Legislature.
 It is also noted that the structure of the Freedom of Information
          Law as it pertains to the State Legislature differs from its structure
          as it pertains to agencies of state and local government subject to §87
          of the Law. In brief, as the Freedom of Information Law applies to
          agencies, that statute 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 section 87(2)(a) through (i) of the Law. As
          the
          Law applies to the State Legislature, §88(2) and (3) include reference
          to certain categories of records that must be disclosed. Therefore,
          unless records of the Legislature fall within one or more of those
          categories of accessible records, there is no obligation to disclose.
 Second, of potential relevance to your inquiry is §88(3)(b),
          which
          requires that each house of the State Legislature maintain and make
          available "a record setting forth the name, public office address,
          title
          and salary of every officer or employee." While that record is
          not the
          subject of your request, it may relate to the records sought. Among
          the
          categories of records available from the State Legislature is §88(2)(e),
          which requires the disclosure of "internal or external audits
          and
          statistical or factual tabulations of, or with respect to, material
          otherwise available for inspection and copying pursuant to this section
          or any other applicable provision of law."
 I am unfamiliar with the specific content of the records in which
          you are interested. However, if they are typical of time and attendance
          records, arguably, they would include "statistical or tabulations
          of, or
          with respect to" the payroll record required to be made available
          pursuant to §88(3)(b); on the other hand, if their contents are
          different or unrelated to records otherwise available by law, they
          would
          be beyond the scope of rights of access.
 Lastly, it is noted that in a decision affirmed by the State's
          highest court dealing with attendance records maintained by an agency
          (not the State Legislature), specifically those indicating the days
          and
          dates of sick leave claimed by a particular employee, it was found
          that
          the records are accessible. In that case, the Appellate Division 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..."[Capital Newspapers v. Burns,109 AD 2d
  92, 94-95 (1985), aff'd 67 NY 2d 562 (1986)].
 Insofar as an agency's 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.
 Moreover, 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 that an agency's
          attendance records must be disclosed under the Freedom of Information
          Law. As suggested earlier, whether that is so with respect to similar
          records maintained by the State Legislature would be dependent upon
          their contents and their relationship to records that are available
          pursuant to the law.
I hope that I have been of some assistance.
Sincerely,
 Robert J. Freeman
  Executive Director
RJF:pb
          cc: Angelo Mangia, Counsel to the Majority
  Stephen Sloan, Secretary of the Senate
 State of New York
State of New York