January 27, 1997





Mr. Donald E. Gooley
Odessa-Montour Central School District
Odessa, NY 14869

Dear Mr. Gooley:

I appreciated receipt of a copy of your determination of an appeal by John B. Schamel rendered on December 18. In brief, you affirmed a denial of access to certain W-2 forms because those records "show how much money each administrator contributed to tax shelter annuities." As such, you concluded that "this falls under personal privacy protection."

From my perspective, the issue is whether disclosure of the information in question would constitute an "unwarranted invasion of personal privacy" pursuant to §§87(2)(b) and 89(2) of the Freedom of Information Law. In my view, subject to certain qualifications, the records should be disclosed.

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.

Although tangential to your inquiry, I point out that §87(3)(b) of the Freedom of Information Law 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. Moreover, 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)]. In Gannett, supra, 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 operational 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)].

Based on the foregoing, a record identifying agency employees by name, public office address, title and salary must in my view be maintained and made available.

It has been contended that W-2 forms are specifically exempted from disclosure by statute on the basis of 26 USC 6103 (the Internal Revenue Code) and §697(e) of the Tax Law. In my opinion, those statutes are not applicable in this instance. In an effort to obtain expert advice on the matter, I contacted the Disclosure Litigation Division of the Office of Chief Counsel at the Internal Revenue Service to discuss the issue. I was informed that the statutes requiring confidentiality pertain to records received and maintained by the Internal Revenue Service; those statutes do not pertain to records kept by an individual taxpayer [see e.g., Stokwitz v. Naval Investigation Service, 831 F.2d 893 (1987)], nor are they applicable to records maintained by an employer, such as a school district. In short, the attorney for the Internal Revenue Service said that the statutes in question require confidentiality only with respect to records that it receives from the taxpayer.

In conjunction with the previous commentary concerning the ability to protect against unwarranted invasions of personal privacy, I believe that portions of W-2 forms could be withheld, such as social security numbers, home addresses and net pay, for those items are largely irrelevant to the performance of one's duties. However, for reasons discussed earlier, those portions indicating public officers' or employees' names and gross wages must in my view be disclosed. Further, in a recent decision, the same conclusion was reached, and the court cited an advisory opinion rendered by this office (Day v. Town of Milton, Supreme Court, Saratoga County, April 27, 1992).

In many contexts, public rights of access have been determined in consideration of whether an item of personal information is relevant to the performance of a public officer's or employee's duties. In two decisions, Matter of Wool (Supreme Court, Nassau County, NYLJ, November 22, 1977) and Minerva v. Village of Valley Stream (Supreme Court, Nassau County, May 20, 1981), the issue involved disclosure of information concerning the manner in which public officers and employees choose to spend their money. In Wool, the issue involved a request for a record indicating salaries of certain public employees, as well as notations of deductions made for payment of union dues. The court held that salary information is clearly available, but that the information 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 to the functioning of his or her employer." In Minerva, the request involved both sides of checks paid by a municipality to its attorney. While the court held that the front side of the checks must be disclosed, it found that the backs of checks indicating "how he disposes of his lawful salary or fees" could be withheld as an unwarranted invasion of personal privacy.

If the test to be used is whether items of information identifiable to public officers and employees are relevant to the performance of their official duties, I believe that the information sought could be withheld. Whether a public officer or employee chooses to defer compensation in my opinion has no relevance to the performance of that person's official duties.

Nevertheless, perhaps that should not be the only "test" for determining rights of access to records identifiable to public officers and employees. As suggested earlier, the standard in the Freedom of Information Law, "unwarranted invasion of personal privacy", is subject to a variety of considerations and points of view, and the language of the law in applying that standard is flexible. A countervailing argument, vis à vis the test described above and my view of extant case law regarding the privacy of public employees, arises in the language of a decision rendered by the Court of Appeals cited earlier. In Capital Newspapers v. Burns, supra, the issue involved records reflective of the days and dates of sick leave claimed by a particular police officer. The Appellate Division, as I interpret its decision, held that those records were clearly relevant to the performance of the officer's duties, for the Court 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..." [109 AD 2d 92, 94-95 (1985)].

Perhaps more importantly, in a statement concerning the intent and utility of the Freedom of Information Law, the Court of Appeals affirmed and 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 commentary offered by the State's highest court, it might appropriately be contended that the need to enable the public to make informed choices and provide a mechanism for exposing waste or abuse must be balanced against the possible infringement upon the privacy of a public officer or employee. The magnitude of an invasion of privacy is conjectural and must in many instances be determined subjectively. In this instance, if a court found the invasion of one's privacy to be substantial, it might be determined that the interest in protecting privacy outweighs the interest in identifying employees who defer compensation. On the other hand, in conjunction with the direction provided by the Court of Appeals in the passage quoted earlier, it might be determined that the information sought should be disclosed in view of the public's significant interest in knowing the amount of public monies being expended.

In consideration of the factors that have been discussed, if indeed references to deferred compensation essentially represent payments made to public employees and expenditures of public monies, even though those references are not reported as gross wages, I believe that they should be disclosed. To find that items reflective of public employees' compensation are not available would, in my opinion, be inconsistent with the overall thrust of the Freedom of Information Law and its judicial interpretation. If my understanding of the matter is correct, references to deferred compensation are not analogous to deductions from one's wages but rather additions to wages. So long as there is no indication of how deferred compensation is invested, allocated or used, on balance, it would appear that the invasion of a public employee's privacy by means of disclosure would not be so significant or "unwarranted" as to outweigh the public's interest of knowing of the expenditure of taxpayers' money.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: John B. Schamel