Request for Employees’ Names and Addresses Not Allowed Under Balancing Test (Privacy versus Public Interest)

The Third Department applied a balancing test to determine whether petitioner’s Freedom of Information Law (FOIL) request for the names and addresses of employees should be granted.  The petitioner, a union employee, wished to communicate with the employees to ensure that nonunion contractors comply with the prevailing wage law (Labor Law 220).  The court affirmed the denial of petitioner’s request:

“FOIL is based on a presumption of access to [government] records, and an agency . . . carries the burden of demonstrating that [an] exemption applies to [a] FOIL request” … .  The personal privacy exemption (see Public Officers Law § 87 [2] [b]) incorporates a nonexhaustive list of categories of information that 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 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” … . * * *

An unwarranted invasion of personal privacy has been characterized as that which “‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities'” … .  Petitioner’s union desires 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.  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. A significant privacy interest is implicated… . Matter of Massaro v NYS Thruway Authority, 516113, 3rd Dept 11-7-13