March 27, 1996


Hon. Larry G. Mack
Cattaraugus County Legislature
3911 Humphrey Road
Great Valley, NY 14741

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. Mack:

I have received your letter of March 6 in which you sought assistance concerning a request made under the Freedom of Information Law that you directed to Cattaraugus County.

By way of background, according to your letter, the County has determined to pay employees a $1,000 a year for opting out of the County's health insurance coverage. You requested a list of the names and addresses of the employees who have opted for the "buy out."

In this regard, I offer the following comments.

First, it is noted that the Freedom of Information Law pertains to existing records. Section 89(3) of that statute states in part that an agency is not required to create a record in response to a request. Therefore, if no list exists, the County would not be obliged to prepare a list on your behalf. In the future, unless it is certain that a list exists, it is suggested that you request records containing the information of your interest rather than a list.

Second, 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.

Relevant to the matter is §87(2)(b), which enables agencies to withhold records to the extent that disclosure would constitute an unwarranted invasion of personal privacy. Although tangential to the issue, I point out that records indicating the salaries of public employees must be disclosed. Specifically, §87(3)(b) of the Freedom of Information Law states that: "Each agency shall maintain...a record setting forth the name, public office address, title and salary of every officer or employee of the agency..." Similarly, records reflective of other payments, whether they pertain to overtime, or participation in work-related activities, for example, would be available, for those records in my view would be relevant to the performance of one's official duties. It is also noted that those portions of W-2 forms indicating public employees' names and gross wages have been found to be available to the public (Day v. Town Board of Town of Milton, Supreme Court, Saratoga County, April 27, 1992).

In my opinion, a record of payment to a public employee would generally be accessible to the public. In this instance, it is my view that the names of those who have received payments in conjunction with the "buy out" should be made available.

Lastly, §89(7) of the Freedom of Information Law states in relevant part that the home addresses of public employees need not be disclosed. Therefore, while I believe that the names of the employees in question should be made available, the County is not required to disclose their home addresses.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: County Clerk
County Administrator