| Matter of Polokoff-Zakarin v Boggess |
| 2009 NY Slip Op 03823 [62 AD3d 1141] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of Penny M. Polokoff-Zakarin,Appellant, v Steven M. Boggess, as Secretary of the New York State Senate, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Stein, J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered March 11, 2008in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to, among other things, review a determination of respondents denying petitioner'sFreedom of Information Law request.
Petitioner requested documents regarding an employee of the State Senate pursuant to theFreedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]).Specifically, her request sought records "showing the date of employment and date oftermination of employment, the title or position of employment held, the salary paid, andcontaining the complete time and attendance records for [a particular] employee of the StateSenate sometime between 1990 and 2007." Respondent Steven M. Boggess, the Secretary of theSenate, responded by letter setting forth the employee's dates of employment, title and salary butdid not supply the actual documents relied upon for this information. Boggess denied petitioner'srequest for time and attendance records on the ground that she was not entitled to them underFOIL. Upon administrative appeal, respondent Michael A. Avella, Counsel to the SenateMajority, affirmed Boggess's determination, but indicated that he was enclosing the underlyingrecord containing the information already provided to petitioner. Nonetheless, that record wasnot [*2]enclosed and has never been supplied to petitioner.
Petitioner commenced this proceeding pursuant to CPLR article 78 seeking a declaration thatrespondents' FOIL determination was incorrect, a direction that respondents provide her with acopy of the subject employee's time and attendance records, and an award of reasonable counselfees. Supreme Court dismissed the petition and petitioner now appeals.
We first recognize the distinction between FOIL as applied to state "agencies" and as appliedto the Legislature.[FN1] While FOIL, as it applies to agencies, is based on a presumption of access such that all recordsare available to the public unless they fall within a specific statutory exception (seePublic Officers Law § 87 [2]), the Legislature is only obligated to disclose records that fallwithin a specifically enumerated category (see Public Officers Law § 88 [2], [3];Matter of Weston v Sloan, 84 NY2d 462, 466 [1994]). Bearing that in mind, we note thatrespondents are statutorily required to "maintain and make available for public inspection andcopying . . . a record setting forth the name, public office address, title, andsalary of every officer or employee" (Public Officers Law § 88 [3] [b] [emphasis added]).Providing such information in a letter prepared in response to a FOIL request does not satisfythis requirement. Contrary to respondents' argument on this appeal, it appears that even theyrecognized their obligation to provide the underlying records, as demonstrated by Avella's letterto petitioner's attorney indicating that he was forwarding such records.
Petitioner relies on two additional mandates to support her contention that respondents arealso required to provide time and attendance records. First, Public Officers Law § 88 (2)(e) requires that respondents disclose any "statistical or factual tabulations of, or with respect to,material otherwise available for public inspection and copying pursuant to this section or anyother applicable provision of law." In addition, Rules of the Senate, rule XIV, § 1 (a)requires that "personnel payroll records" be provided pursuant to FOIL. We find no rationalbasis for respondents' interpretation that "personnel payroll records" refer to the samerecords—pertaining to name, public office address, title and salary—referenced inPublic Officers Law § 88 (3) (b) and no more (but see Matter of Greene vBoggess, Sup Ct, Albany County, Oct. 19, 2005, Kavanagh, J., index No. 5049-05). There isabsolutely nothing in the record to support such an interpretation, nor do respondents explainwhy Senate rule XIV, § 1 (a) is necessary if it is merely a restatement of Public OfficersLaw § 88 (3) (b). Thus, accepting respondents' interpretation would render the rulemeaningless—a result which cannot be countenanced (see generally McKinney'sCons Laws of NY, Book 1, Statutes § 231; Matter of R.A. Bronson, Inc. v FranklinCorrectional Facility, 255 AD2d 723, 724 [1998]). Furthermore, in our view, the ordinarymeaning of the term "personnel payroll record" is broader than "name, public office address,title, and salary" (Public Officers Law § 88 [3] [b]) and includes information concerningan employee's time and attendance—information that would typically be included in atime and attendance record such as those at issue here (see generally McKinney's ConsLaws of NY, Book 1, Statutes § 232).[FN2]Thus, we conclude that time and attendance records fall within the definition [*3]of personnel payroll records which are available for publicinspection pursuant to Senate rule XIV, § 1 (a), and they must be disclosed. Significantly,this interpretation results in effectuating FOIL's purpose of promoting "access [to] governmentalrecords, to assure accountability and to thwart secrecy" (Matter of Buffalo News v BuffaloEnter. Dev. Corp., 84 NY2d 488, 492 [1994]; see Matter of Weston v Sloan, 84NY2d at 466).[FN3]
Notwithstanding our conclusion that respondents' determination lacked a rational basis, wedo not find that an award of counsel fees is warranted. Assuming, without finding, that PublicOfficers Law § 89 (4) (c) (i) is applicable, it cannot be said that there was no reasonablebasis for respondents' position in view of the determination in Matter of Greene vBoggess (supra).
The parties' remaining contentions have been considered and are found to be either academicor without merit.
Rose, J.P., Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as dismissed that part ofpetitioner's application seeking to annul respondents' determination denying her Freedom ofInformation Law request; petition granted to that extent; and, as so modified, affirmed.
Footnote 1: The Legislature is specificallyexcluded from the definition of the term "agency" for purposes of FOIL (see PublicOfficers Law § 86 [3]).
Footnote 2: There are no examples of thedocuments in question in the record on appeal. Although a document entitled "Overview of theSenate's Time and Attendance Plan"—which contained, among other things, a sample timeand attendance record—was handed up by petitioner at oral argument, we decline toconsider that document, as it was not before Supreme Court and no explanation of its purpose orlegal effect was provided.
Footnote 3: In view of our determinationherein, we need not address petitioner's argument that the Senate employee's time and attendancerecords are also subject to disclosure as a factual tabulation of, or with respect to, the employee'ssalary pursuant to Public Officers Law § 88 (2) (e) and (3) (b).