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 FOIL-AO-15627

November 8, 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 September 2, 2005 request for an advisory opinion concerning the availability of certain documents which were the subject of a decision by Justice Charles Ramos in People v. Grasso, Index No. 401620/04 (Supreme Court, New York County, April 4, 2005).

Based on the materials you provided, your request to the Attorney General involved "[t]ranscripts and/or notes of interviews conducted in the preparation of ‘Report to the New York stock Exchange on Investigation Relating to the Compensation of Richard A. Grasso’" transmitted to his office, along with "[o]ther supporting materials transmitted to [his] office in connection with said report, as referenced in the footnotes to the report." Your request was denied on the ground that such documents were compiled for law enforcement purposes and disclosure would interfere with law enforcement investigations or judicial proceedings.

The transcript of proceedings before Justice Ramos, which you submitted to this office, reflects Justice Ramos’ decision to deny the New York Stock Exchange’s motion to mark interview memos confidential. The memos were produced by the NYSE during its internal investigation and interview of 60 or 70 witnesses (id., at 34-40). Not having a copy of the above referenced Report, it is not clear whether the documents you requested from the Attorney General are the same as the interview memos Justice Ramos refused to declare confidential on April 4, 2005. Nevertheless, we offer the following remarks.

It is emphasized at the outset that 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. The Attorney General relies on paragraph (e)(i) to deny access, which states that an agency may withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings..."

From our perspective, the exception quoted above is limited in its application. First, we believe that it pertains only to records that were "compiled for law enforcement purposes." There are many instances in which records are prepared in the ordinary course of business but later are used in or are relevant to a law enforcement investigation. In our view, the character of the records does not change due to their significance to an investigation. For instance, in a case in which minutes of meetings of a municipal board were subpoenaed by a district attorney for presentation before a grand jury and were later requested under the Freedom of Information Law, the court rejected the district attorney’s contention that the records were compiled for law enforcement purposes. On the contrary, because the minutes were prepared in the ordinary course of business and had been accessible to the public prior to their use in an investigation, they were no less accessible thereafter merely because they were being used in conjunction with an investigation (King v. Dillon, Supreme Court, Nassau County, December 19, 1984).

Second, even when records have been compiled for law enforcement purposes, the ability to deny access is limited to those portions of the records which if disclosed would result in the harmful effects described in subparagraph (i). As the transcript reveals, while present at the hearing, the Attorney General’s Office failed to object to Justice Ramos’ determination that the records were not confidential. It seems, therefore, that the issue of whether there is any appreciable impact on the Attorney General’s functions has already been judicially determined and cannot validly be asserted at this time.

With regard to the remainder of the documents requested, it is questionable whether materials collected by the NYSE and transmitted to the Attorney General in the same manner as the interview memos may be protected from disclosure pursuant to §87(2)(e)(i). No evidence was offered by the Attorney General to suggest that disclosure would interfere with the investigation of or judicial proceeding involving Mr. Grasso. In fact, as we understand the situation, the records were disclosed to the defendant, Mr. Grasso.

If that is so, it is difficult to envision how or the extent to which §87(2)(e) could serve as a basis for denying access. Although not relied on by the Attorney General at the hearing or in denial of your request, §87(2)(e)(iii) permits an agency to withhold records "compiled for law enforcement purposes and which if disclosed", would "identify a confidential source or disclose confidential information relating to a criminal investigation." In consideration of the kinds of records at issue, this office has in the past advised that §87(2)(e)(iii), as well as two other exceptions, may be pertinent in ascertaining rights of access or, conversely, an agency’s authority to deny access. Those other exceptions are §87(2)(b) and (f), which respectively permit an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy" or "could endanger the life or safety of any person."

In many instances, the deletion of names or other identifying details is sufficient to protect privacy and safety and to safeguard against the possibility of identifying a witness or informant. Based on the information you have provided, however, the Attorney General did not consider or assert those exceptions. That being so, we offer the following remarks relative to the appeal process following a denial of a request for records.

The Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied..."

It is noted that new language was added to that provision on May 3 (Chapter 22, Laws of 2005) stating that:

"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."

Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgment is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. If it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, however, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.

The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon "the circumstances of the request." It is our perspective that every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure. As the Court of Appeals, the state’s highest court, has asserted:

"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].

In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:

"The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL"(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).

If neither a response to a request nor an acknowledgment of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgment, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.

In an effort to enhance compliance with and understanding of the Freedom of Information Law, a copy of this opinion will be forwarded to Ms. Stacey B. Rowland.

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

Sincerely,

Camille S. Jobin-Davis
Assistant Director

CSJ:tt

cc: Stacey B. Rowland