June 27, 1994



Mr. Thomas D. Phillips
217 Seventh Avenue
Watervliet, NY 12189

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. Phillips:

I have received your letter dated June 9, as well as various materials relating to it.

According to your letter:

"[You] have applied to the New York State and Local Employee's Retirement System for retroactive membership pursuant to section 803 of the Retirement and Social Security Law. Under this provision, retroactive membership is available from the date that an individual was first eligible to join the Retirement System if the individual was not advised of his opportunity/eligibility to join such System when he commenced eligible employment (assuming other statutory requirements are met). The employer who employed an 803 applicant must file an affidavit with the Retirement System stating whether the individual was afforded such opportunity/information at the time the employee commenced eligible employment."

As a temporary employee of the Department of Taxation and Finance in 1972, you indicated that your status as such permitted but did not require you to become a member of the Retirement System. You alleged that you were never advised of your right to membership, and you have filed an application pursuant to §803 of the Retirement and Social Security Law. The Department has indicated that there are no records pertaining to the matter, but it claims that there was policy of advising new employees of their eligibility.

Having requested the "names only" of others who have applied under §803, the Department denied access on the ground that disclosure would result in "an unwarranted invasion of personal privacy." Since Department employees have informed you that names of public employees constitute public information, it is your contention that there is no basis for withholding "names only" of those who have submitted applications.

You have sought my views on the matter. 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 section 87(2) (a) through (i) of the Law.

Second, as you are aware, the issue is whether disclosure of the information sought would constitute an unwarranted invasion of personal privacy pursuant to §87(2)(b) of the Freedom of Information Law. 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. 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. 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].

While I am unaware of any judicial decision that deals specifically with factual circumstances you described, I believe that the situation presented in Wool is most analogous. In that case, the issue involved a request for a record that identified public employees by name and salary, and the same record included a column indicating which among the employees had deductions made for payment of union dues. The court held that salary information is clearly available, but that the column 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 the functioning of his or her employer." In Wool, certain employees had the option of joining a union or not doing so. In the situation that you described, employees appear to have had a similar kind of option, to join the Retirement System or to choose not to do so.

In view of the similarities between your situation and that described in Wool, it appears that disclosure of the names in question, those reflective of the class of persons employed or once employed by a particular agency who have applied under §803 of the Retirement and Social Security Law, would result in an unwarranted invasion of personal privacy. I recognize that reasonable people may differ, especially when dealing with issues of privacy. Nevertheless, the judicial decision involving the most analogous facts indicates that the records sought may be withheld.



Robert J. Freeman
Executive Director


cc: Karl E. Felsen
Terrence Boyle