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FOIL-AO-13174

February 4, 2002

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

I have received your communication in which you referred to a conversation between yourself and David Treacy of this office in which you sought confirmation of the opinion that he offered during your telephone conversation. The matter involved the authority of your agency, the Department of Taxation and Finance, to disclose the content of the personal history file of a deceased employee to that person's next of kin. You added that the question was precipitated by a request made by the widow of an employee who died in the attack on the World Trade Center.

In short, with one possible exception, I believe that the next of kin likely has rights of access to the deceased employee's personal history file. In this regard, I offer the following comments.

From my perspective, when a person can demonstrate that he or she is the next of kin of the deceased by means of documentary proof, he or she would acquire the rights of the deceased for purposes of rights of access to the records in question. Stated differently, I believe that the person would have the same rights of access to the personal history file as the deceased when the deceased was living.

Those rights would, in my view, be governed by the Freedom of Information Law and perhaps more significantly by the Personal Privacy Protection Law. The former generally pertains to rights of access conferred upon an individual as a member of the public; the latter deals with rights of access by the subject of records to records pertaining to himself or herself. Again, in this instance, assuming that the next of kin can demonstrate his or her relationship to the deceased, I believe that he or she would acquire the rights of the deceased.

In brief, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

As you may be aware, §§87(2)(b) and 89(2) authorize an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." However, as a general matter, a person cannot invade his or her own privacy. Pertinent is §89(2)(c), which provides that unless there is a separate basis for a denial of access, "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy...when the person to whom a record pertains consents in writing to disclosure" or "when presenting reasonable proof of identity, a person seeks access to records pertaining to him."

Similarly, the Personal Privacy Protection Law generally requires that state agencies disclose records about data subjects to those persons. A "data subject" is "any natural person about whom personal information has been collected by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal information" is defined to mean "any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject" [§92(7)]. For purposes of the Personal Privacy Protection Law, the term "record" is defined to mean "any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject" [§92(9)].

Under §95 of the Personal Privacy Protection Law, a data subject has the right to obtain from a state agency records pertaining to him or her, unless the records sought fall within the scope of exceptions appearing in subdivisions (5), (6) or (7) of that section or §96, which would deal with the privacy of others.

In my experience, most of the contents of a personal history file pertaining to an employee would be available to that employee. The circumstances in which portions of the file might properly be withheld would involve situations in which the records identify others, and disclosure would constitute an unwarranted invasion of those other persons' privacy. For instance, if a member of the public has made a complaint about an employee, often the name or other details identifying the member of the public may often be deleted to protect that person's privacy. However, that kind of situation is relatively rare.

In sum, if it can be assumed that a person can demonstrate that he or she is the next of kin of the deceased, I believe that he or she would acquire the rights that the deceased had when he or she was living.

I hope that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.

RJF:jm