| Matter of Massaro v New York State Thruway Auth. |
| 2013 NY Slip Op 07234 [111 AD3d 1001] |
| November 7, 2013 |
| Appellate Division, Third Department |
| In the Matter of John J. Massaro, Appellant, v New YorkState Thruway Authority et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of counsel), forrespondents.
Lahtinen, J. Appeal from a judgment of the Supreme Court (McGrath, J.), enteredAugust 14, 2012 in Albany County, which dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to review a determination of respondent NewYork State Thruway Authority partially denying petitioner's Freedom of InformationLaw request.
Petitioner is a union employee and, as part of his job, purportedly seeks to ensure thatnonunion contractors comply with the prevailing wage law (see Labor Law§ 220). He filed a request under the Freedom of Information Law (seePublic Officers Law art 6 [hereinafter FOIL]) with respondent New York State ThruwayAuthority (hereinafter respondent) seeking, among other things, certified payroll recordsof a private nonunion contractor relating to work it performed on a public works project.Respondent partially granted petitioner's request, providing employee titles andcorresponding wage rates that were paid. However, respondent redacted the employees'names, home addresses and Social Security numbers upon the ground that disclosure ofsuch information would constitute an unwarranted invasion of personal privacy(see Public Officers Law §§ 87 [2] [b]; 89 [2]). Following anunsuccessful administrative appeal, petitioner commenced this CPLR article 78proceeding seeking disclosure of the employees' names and home addresses. SupremeCourt dismissed the petition and petitioner appeals.[*2]
"FOIL is based on a presumption of access to[government] records, and an agency . . . carries the burden ofdemonstrating that [an] exemption applies to [a] FOIL request" (Matter of Data Tree, LLC vRomaine, 9 NY3d 454, 462 [2007] [citations omitted). Exemptions are narrowlyconstrued (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67NY2d 562, 566 [1986]). The personal privacy exemption (see Public OfficersLaw § 87 [2] [b]) incorporates a nonexhaustive list of categories of informationthat falls within the exemption (see Public Officers Law § 89 [2] [b][i]-[vii]). Where, as here, none of the categories applies specifically, the issue of whetherthere is an "unwarranted invasion" of privacy is decided "by balancing the privacyinterests at stake against the public interest in disclosure of the information" (Matter of New York Times Co. vCity of N.Y. Fire Dept., 4 NY3d 477, 485 [2005]).
Before engaging in the requisite balancing, we note that we find unpersuasivepetitioner's contention that Matter of New York State United Teachers v Brighter ChoiceCharter School (15 NY3d 560 [2010]) requires a ruling in his favor. That case,which held that a charter school did not have to supply the names of teachers tothe union, dealt with a specific statutorily exempt category regarding information soughtfor fund-raising (see id. at 563-564; Public Officers Law § 89 [2] [b] [iii])and, thus, there was no need, as here, to engage in the balancing analysis for anon-categorized privacy claim. Since the purpose for which the information was soughtby the union in Brighter Choice fell within a specific statutorily exempt category,the Court of Appeals concluded that the statutory exemption controlled (Matter ofNew York State United Teachers v Brighter Choice Charter School, 15 NY3d at565). Similarly, several of the cases from the Fourth Department relied upon bypetitioner involved disputes over specific statutorily exempt categories (see;Matter of Buffalo News v Buffalo Mun. Hous. Auth., 163 AD2d 830, 831[1990]; Matter of Hopkins v City of Buffalo, 107 AD2d 1028, 1029 [1985];Matter of Casella v City of Rochester, Sup Ct, Monroe County, Mar. 10, 2010,Taddeo, J., index No. 09/16229, *2, affd for reasons stated below 78 AD3d 1597[2010]). Conversely, a case from the First Department relied upon by respondentsapplied the balancing test to similar facts as here and concluded that it was proper toredact the home addresses of employees of a private contractor (see Matter of JointIndus. Bd. of Elec. Indus. v Nolan, Sup Ct, NY County, May 8, 1989, McCooe, J.,index No. 00209/89, *1-3, affd for reasons stated below 159 AD2d 241 [1990]).Notwithstanding the distinction regarding the applicability of the balancing test, theholdings of these cases nevertheless reflect the difficulty of this issue.
We turn to the balancing analysis, which both parties agree applies. An unwarrantedinvasion of personal privacy has been characterized as that which " 'would be offensiveand objectionable to a reasonable [person] of ordinary sensibilities' " (Matter ofEmpire Realty Corp. v New York State Div. of Lottery, 230 AD2d 270, 273 [1997],quoting Matter of Dobranski v Houper, 154 AD2d 736, 737 [1989]; see Matter of Pennington vClark, 16 AD3d 1049, 1051-1052 [2005], lv denied 5 NY3d 712[2005]). Petitioner's union desires names and home addresses so that it can contactemployees of the nonunion contractor to find out if they were paid as reported by theiremployer. The scenario of nonunion employees of a nongovernment employer beingcontacted at their homes by someone from a union who knows their names, their homeaddresses, the amount of money they reportedly earn, and who wants to talk about thatincome would be, to most reasonable people, offensive and objectionable. A significantprivacy interest is implicated (cf. Department of Defense v FLRA, 510 US 487,489 [1994]; Public Officers Law § 89 [7]; Matter of Schenectady County Socy. for the Prevention of Crueltyto Animals, Inc. v Mills, 74 AD3d 1417, 1419 [2010], affd 18 NY3d 42[2011]).[*3]
Petitioner counters that release of thisinformation to his union is in the public interest since the union is attempting to ensurethat the contractor paid appropriate wages and that the union is gathering necessary datashould an underpaid employee desire its representation under Labor Law § 220-g.However, the redacted payroll records that respondent provided topetitioner—with employee titles and corresponding wage rates—providesufficient information (absent fraudulent record creation by a contractor) to confirmwhether the contractor complied with wage requirements. Moreover, if fraudulent or anyother noncompliant conduct is suspected, further investigation may be initiated uponrequest to the appropriate government official. Labor Law § 220 (7) provides thata governmental fiscal officer (see Labor Law § 220 [5] [e] [defining fiscalofficer]) "shall on a verified complaint in writing of any person interested or of [a union][or] may on his [or her] own initiative cause a compliance investigation to be made todetermine whether the contractor . . . has paid the prevailing rate of wages."The fiscal officer is granted broad investigatory powers by such statute to ensurecompliance (see Labor Law § 220 [7]; see generally Matter of Chesterfield Assoc. v New York State Dept.of Labor, 4 NY3d 597 [2005]).
Notwithstanding the FOIL presumption of access to information gathered by thegovernment and the important policy of ensuring payment of prevailing wages, thesignificant personal privacy interests implicated here prevail, particularly since theinformation already provided to petitioner should be sufficient to ensure compliance; inany event, other avenues are available to ensure compliance without invading the privacyof the employees of the nonunion contractor by disclosing their names and homeaddresses.
The remaining arguments have been considered and are unavailing.
Rose, J.P., Spain and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.