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FOIL-AO-15614

November 3, 2005

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

Dear

We are in receipt of your August 9, 2005 request for an advisory opinion concerning the application of the Personal Privacy Protection and Freedom of Information Laws to requests you have made for records of the New York State Department of Transportation.

Based on the information you provided, the Department "enclosed copies of 197 pages of documents, but access to others was denied, and certain that were provided were redacted," citing sections 87(2)(b) and 89(2)(b) of the Public Officers Law. The Department responded to your appeal, concluding that "the sections cited were proper authority" and "[i]t is clear . . . that the withheld documents could also properly fall within this [§87(2)(g)] category of records."

While it is possible that some elements of the records sought might justifiably be withheld, the expressed basis for the affirmance of the denial is, in our opinion, inadequate. In this regard, we offer the following comments.

First, §89(4)(a) of the Freedom of Information Law pertains to the right to appeal a denial of access to records and requires that an agency's determination of an appeal must either grant access to the records or "fully explain in writing... the reasons for further denial." In this instance, the determination following your appeal merely repeated citations referenced in the initial denial of access and added another. From our perspective, the response to the appeal could not be characterized as having "fully explained" the reasons for further denial. We note that the New York City Department of Investigation was criticized in Lewis v. Giuliani (Supreme Court, New York County, NYLJ, May 1, 1997) for a denial of access also based merely on a reiteration of the statutory language of an exception, stating that "DOI may not engage in mantra-like invocation of the personal privacy exemption in an effort to 'have carte blanche to withhold any information it pleases'". In this instance, the unwarranted invasion of personal privacy exception appears to have been used in much the same manner.

Second, it is apparent that you may have misinterpreted a conversation that you had with our Executive Director with respect to the identification of documents which an agency refuses to provide. In that regard, there is nothing in the Freedom of Information Law or judicial decisions construing that statute that would require that a denial at the agency level identify every record withheld or include a description of the reason for withholding each document. Such a requirement has been imposed under the federal Freedom of Information Act, which may involve the preparation of a so-called "Vaughn index" [see Vaughn v. Rosen, 484 F.2D 820 (1973)]. Such an index provides an analysis of documents withheld by an agency as a means of justifying a denial and insuring that the burden of proof remains on the agency. Again, we are unaware of any decision involving the New York Freedom of Information Law that requires the preparation of a similar index.

Further, one decision suggests the preparation of that kind of analysis might in some instances subvert the purpose for which exemptions are claimed. In that decision, an inmate requested records referring to him as a member of organized crime or an escape risk. In affirming a denial by a lower court, the Appellate Division found that:

"All of these documents were inter-agency or intra-agency materials exempted under Public Officers Law section 87(2)(g) and some were materials the disclosure of which could endanger the lives or safety of certain individuals, and thus were exempted under Public Officers Law section 87(2)(f). The failure of the respondents and the Supreme Court, Westchester County, to disclose the underlying facts contained in these documents so as to establish that they did not fall 'squarely within the ambit of [the] statutory exemptions' (Matter of Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY 2d 75, 83; Matter of Fink v. Lefkowitz, 47 NY 2d 567, 571), did not constitute error. To make such disclosure would effectively subvert the purpose of these statutory exemptions which is to preserve the confidentiality of this information" [Nalo v. Sullivan, 125 AD 2d 311, 312 (1987)].

Based on the August 3, 2005 correspondence from the Department denying your appeal, it appears you have exhausted your administrative remedies and may initiate a challenge under Article 78 of the Civil Practice Law and Rules. Although the Committee on Open Government is authorized to issue advisory opinions concerning the application of the Freedom of Information Law, this office is not empowered to determine appeals or compel an agency to grant or deny access.

In an effort to enhance compliance with and understanding of the Freedom of Information Law, a copy of this opinion will be forwarded to Mr. Peter Loomis.

I trust this meets with your request. If you have any further questions, please contact me directly.

Sincerely,

Camille S. Jobin-Davis
Assistant Director

CSJ:tt
cc: Peter Loomis