August 8, 1994



Mr. Dennis V. Tobolski
County Attorney
County of Cattaraugus
303 Court Street
Little Valley, NY 14755

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. Tobolski:

I have received your letter of July 25. You wrote that a question has arisen "as to whether individuals who are hired as deputy sheriffs to be assigned to the County's undercover drug enforcement unit must file oaths of office in accordance with Section 62 of the Civil Service Law, and if so, whether the County Clerk must list such filed oaths in the Clerk's oath book, which is available for inspection by the general public." You added "there is concern...that the release of the names of those individuals assigned to the undercover unit may jeopardize their safety."

In this regard, I offer the following comments.

First, as you are aware, the Committee on Open Government is authorized to advise with respect to the Freedom of Information Law. Consequently, insofar as your inquiry pertains to requirements imposed by the Civil Service Law, it is suggested that you contact the Department of Civil Service. Upon inquiry, I was advised informally by an attorney with the Department that the persons in question must file oaths of office in the same manner as public employees generally.

Second, 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 only ground for denial of potential relevance is §87(2)(f), which enables an agency to withhold records to the extent that disclosure would "endanger the life or safety of any person." If a record indicates that a named individual is assigned to an undercover unit, I believe that his or her name or other identifying details could be withheld pursuant to §87(2)(f). However, if a record, such as an oath of office, indicates a public employee's title (i.e., deputy sheriff) and does not specify that person's assignment to an undercover or similar unit, there would appear to be no basis for a denial of access.

It is also noted tangentially that, with certain exceptions, the Freedom of Information Law is does not require an agency to create records. Section 89(3) of the Law states in relevant part that:

"Nothing in this article [the Freedom of Information Law] shall be construed to require any entity to prepare any record not in possession or maintained by such entity except the records specified in subdivision three of section eighty-seven..."

However, a payroll list of employees is included among the records required to be kept pursuant to "subdivision three of section eighty-seven" of the Law. Specifically, that provision states in relevant part that:

"Each agency shall maintain...

(b) a record setting forth the name, public office address, title and salary of every officer or employee of the agency... "

As such, a payroll record that identifies all officers or employees by name, public office address, title and salary must be prepared to comply with the Freedom of Information Law.

One of the grounds for denial, §87(2)(b), permits an agency to withhold record or portions of records when disclosure would result in "an unwarranted invasion of personal privacy." However, payroll information has been found by the courts to be available [see e.g., Miller v. Village of Freeport, 379 NYS 2d 517, 51 AD 2d 765, (1976); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NYS 2d 954 (1978)]. Miller dealt specifically with a request by a newspaper for the names and salaries of public employees, and in Gannett, the Court of Appeals held that the identities of former employees laid off due to budget cuts, as well as current employees, should be made available. In addition, this Committee has advised and the courts have upheld the notion that records that are relevant to the performance of the official duties of public employees are generally available, for disclosure in such instances would result in a permissible as opposed to an unwarranted invasion of personal privacy [Gannett, supra; Capital Newspapers v. Burns, 109 AD 2d 292, aff'd 67 NY 2d 562 (1986) ; Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, October 30, 1980; Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); and Montes v. State, 406 NYS 664 (Court of Claims 1978)]. As stated prior to the enactment of the Freedom of Information Law, payroll records:

"...represent important fiscal as well as operation information. The identity of the employees and their salaries are vital statistics kept in the proper recordation of departmental functioning and are the primary sources of protection against employment favortism. They are subject therefore to inspection" Winston v. Mangan, 338 NYS 2d 654, 664 (1972)].

In short, subject to the following qualification, a record identifying agency employees by name, public office address, title and salary must in my view be maintained and made available.

In my opinion, disclosure of the identities of municipal employees, including law enforcement officers, would not in most instances endanger their lives or safety. In the unlikely event that the payroll record specifies that employees are in undercover positions, §87(2)(f) might be cited with justification as a basis for deleting those portions of a payroll record that identify such individuals.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director