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State Senate required to provide employee payroll records in response to a Freedom of Information Law request

State Senate required to provide employee payroll records in response to a Freedom of Information Law request
Matter of Polokoff-Zakarin v Boggess, 2009 NY Slip Op 03823, decided on May 14, 2009, Appellate Division, Third Department

Penny Polokoff-Zakarin filed a Freedom of Information [FOIL] request seeking documents concerning an employee of the State Senate, including the individual?s date of employment and date of termination of employment, the title or position of employment held, the salary paid, and ?complete time and attendance records for [the individual] employee of the State Senate sometime between 1990 and 2007."

The Secretary of the Senate, Steven M. Boggess, supplied Polokoff-Zakarin with the individual?s dates of employment, title and salary but denied her request for time and attendance records on the ground that she was not entitled to them under FOIL.

After Michael A. Avella, Counsel to the Senate Majority, affirmed Boggess's determination, Polokoff-Zakarin sued, seeking a declaration that the Senate?s FOIL determination was incorrect.

Supreme Court dismissed her petition and Polokoff-Zakarin appealed.

The Appellate Division commenced its analysis of the issues involved by noting that FOIL, as it applies to ?agencies,? is based on a presumption that all records are available to the public unless it falls within a specific statutory exception and the custodian of the record elects to withhold it on that basis. In contrast, ?the Legislature is only obligated to disclose records that fall within a specifically enumerated category.?*

In this regard, the Senate is statutorily required to "maintain and make available for public inspection and copying . . . a record setting forth the name, public office address, title, and salary of every officer or employee" (Public Officers Law §88(3)(b), [emphasis supplied by the Appellate Division]). Further, providing such information in a letter prepared in response to a FOIL request does not satisfy this requirement.

According to the Appellate Division, ?the ordinary meaning of the term "personnel payroll record" is broader than "name, public office address, title and salary ? and includes information concerning an employee's time and attendance ? information that would typically be included in a time and attendance record such as those at issue here.?

The court?s conclusion: time and attendance records fall within the definition of personnel payroll records which are available for public inspection pursuant to Senate Rule XIV §(1)(a) and they must be disclosed in response to a FOIL request.

* The Legislature is specifically excluded from the definition of the term "agency" for purposes of FOIL (see Public Officers Law §86[3]).

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03823.htm

Full post as published by New York Public Personnel Law on June 24, 2009 (boomark / email).