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Editor: Mitchell H. Rubinstein
New York Law School

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Tuesday, January 7, 2014

Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy

Massaro v New York State Thruway Auth., 2013 NY Slip Op 07234, Appellate Division, Third Department*
 
A union official submitted a Freedom of Information Law [FOIL] request to the New York Thruway Authority in an effort to “ensure that nonunion contractors comply with the prevailing wage law” (see Labor Law §220). Among other things, the official asked the Thruway to provide certified payroll records of a private nonunion contractor relating to work it performed on a public works project and the names and home address of the employees performing the work employed by the nonunion contractor.
 
The Thruway granted the official's request in part, providing employee titles and corresponding wage rates that were paid, redacting the employees' names, home addresses and Social Security numbers. The Thruway contended that providing the names and related information of the employees would constitute an unwarranted invasion of personal privacy within the meaning of FOIL.
 
After an unsuccessful administrative appeal, the official filed an Article 78 petition in Supreme Court seeking a court order directing the Thruway to provide him with the private employer’s employees' names and home addresses. Supreme Court dismissed the petition and official appealed that court’s ruling.
 
The Appellate Division, pointing out that the personal privacy exemption set out in Public Officers Law §87 [2] [b]) provides “a nonexhaustive list of categories of information that falls within the exemption.”
 
Where, however, none of the categories of exemption specifically cover the information demanded, the court said that the issue of whether there is an "unwarranted invasion" of privacy is decided "by balancing the privacy interests at stake against the public interest in disclosure of the information."
 
As to the balancing analysis, the Appellate Division said that “An unwarranted invasion of personal privacy has been characterized as that which ‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.'  Here the official wishes to obtain the names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.”
 
In the words of the Appellate Division, “The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable.” This, the court characterized as “a significant privacy interest.” Citing United States Dept. of Defense v Federal Labor Relations Auth., 510 US 487.
 
Rejecting the union official’s argument that the release of this information to his union is in the public interest since the union is attempting to ensure that the contractor paid appropriate wages and that the union is gathering necessary data should an underpaid employee desire its representation under Labor Law § 220-g, the Appellate Division said that the redacted payroll records that the Thruway provided – indicating employee titles and corresponding wage rates — provide “sufficient information (absent fraudulent record creation by a contractor) to confirm whether the contractor complied with wage requirements.”
 
Further, explained the court, in the event fraudulent or any other noncompliant conduct is suspected, an investigation may be initiated upon request to the appropriate government official as Labor Law §220 (7) provides that a governmental fiscal officer "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 to determine whether the contractor . . . has paid the prevailing rate of wages."
 
The Appellate Division’s conclusion” “Notwithstanding the FOIL presumption of access to information gathered by the government and the important policy of ensuring payment of prevailing wages, the significant personal privacy interests implicated here prevail, particularly since the information already provided to petitioner should be sufficient to ensure compliance; in any event, other avenues are available to ensure compliance without invading the privacy of the employees of the nonunion contractor by disclosing their names and home addresses.”
 
* See also Stevens v New York State Thruway Authority, 2013 NY Slip Op 07235, Appellate Division, Third Department, a case involving essentially the same issues, posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2013/2013_07235.htm
 
The Massaro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07234.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2014/01/providing-the-names-and-home-addresses-of-employees-of-a-private-contractor-to-an-employee-organization-to-be-determined-by-a.html

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