April 29, 1997
Hon. William Grzyb
Supervisor - Town of Amsterdam
415 Lepper Road
Fort Johnson, NY 12070
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 Supervisor Grzyb:
I have received your letter of April 7 and the materials attached to it.
In your capacity as Supervisor of the Town of Amsterdam and a member of the Montgomery County Board of Supervisors, you wrote that a HUD audit of the County Revolving Loan Fund was released on February 18 to 19 persons, including the members of the Board of Supervisors, and that the "report was called a draft and all officials where [sic] requested to keep it confidential." Nevertheless, you indicated that soon thereafter, the report was "leaked" and its contents published. Consequently, the Chairman of the Board of Supervisors has called for an investigation by the County Board of Ethics concerning the leaking of the report. Based on your understanding of the Freedom of Information Law, you wrote that it is your belief that "there was nothing wrong with the release of this document" and that "this was a public document the moment it was distributed to the supervisors and the county had an obligation to make it [sic] contents public."
You have sought my views on the matter. In this regard, I offer the following comments.
First, irrespective of its characterization as a "draft", I believe that the document in question fell within the coverage of the Freedom of Information Law as soon as it came into the possession of the County. That statute pertains to agency records, and §86(4) defines the term "record" expansively to include:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
Based on the foregoing, whether a document is a draft or final, it constitutes a "record" subject to rights of access conferred by the Freedom of Information Law. That is not to suggest that a record must be disclosed, but rather that it falls within the coverage of the Law.
Second, it has been held that a promise or assertion of confidentiality cannot be upheld, unless a statute specifically confers confidentiality. In Gannett News Service v. Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency guaranteed confidentiality to school districts participating in a statistical survey concerning drug abuse. The court determined that the promise of confidentiality could not be sustained, and that the records were available, for none of the grounds for denial appearing in the Freedom of Information Law could justifiably be asserted. In a decision rendered by the Court of Appeals, it was held that a state agency's:
"long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'record' under FOIL. The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt..." [Washington Post v. Insurance Department, 61 NY 2d 557, 565 (1984)].
In short, I do not believe that a promise or assertion of confidentiality would serve to remove from public rights of access records that would otherwise be available.
Third, in terms of public rights of access, 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. From my perspective, if the draft had been requested under that statute by a member of the public, most, but perhaps not all of its contents, would have been available.
I note that although §87(2)(g) of the Freedom of Information Law permits the withholding of inter-agency or intra-agency materials, depending upon the contents of those materials, I do not believe that §87(2)(g) could be cited to withhold communications between the County and a federal agency, such as HUD. Section 86(3) of the Freedom of Information Law defines "agency" to include:
"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
The language quoted above indicates that an "agency" is an entity of state or local government in New York. While there is no case law of which I am aware that deals specifically with the status of communications with a federal agency, since the definition of "agency" does not include a federal agency, it does not appear that §87(2)(g) could be cited as a means of withholding records prepared or transmitted by such an entity, for it, i.e., HUD, would not be an "agency" for the purpose of the State's Freedom of Information Law. Further, there is case law involving the assertion of §87(2)(g) in relation to communications between agencies and entities other than New York state or municipal governments. In both instances, it was held that the assertion of §87(2)(g) was erroneous [see Community Board 7 of Borough of Manhattan v. Schaeffer, 570 NYS 2d 769; affirmed, 83 AD2d 422; reversed on other grounds, 84 NY2d 148 (1994); also Leeds v. Burns, 613 NYS 2d 46, 205 AD2d 540 (1994)].
In my opinion, the only pertinent ground for denial would have been §87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would result in "an unwarranted invasion of personal privacy." Much of the report focuses on the activities, policies and procedures of entities, such as the County, the Montgomery County Economic Development Corporation (MCEDC), and the Economic Development Board (EDB). Those portions of the report, in my view, would have been available under the Freedom of Information Law, for the exception concerning the protection of personal privacy pertains to natural persons, not corporate entities, such as those identified in the preceding sentence. However, even though they do not name them, other portions of the report clearly identify individuals by means of their titles or positions.
Insofar as those portions of the report identifiable to individuals include recommendations or opinions regarding their ethical conduct or possible conflicts of interest, for example, I believe that they could have been withheld if no final determination concerning their conduct had been reached. In situations in which a person is the subject of allegations or questions involving impropriety or misconduct that have not yet been determined or did not result in disciplinary action, it has been held that records relating to those allegations or questions may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS2d 460 (1980). Similarly, to the extent that allegations or charges are found to be without merit, such records may in my view be withheld.
Lastly, with regard to "leaks", I point out that the Freedom of Information Law is permissive. In other words, while that statute authorizes an agency to withhold records in accordance with the grounds for denial, it has been held by the Court of Appeals that the exceptions are not mandatory, and that an agency may choose to disclose records even though the authority to withhold exists [Capital Newspapers v. Burns], 67 NY 2d 562, 567 (1986)].
Although there may be no prohibition against disclosure of records that could be withheld, the foregoing is not intended to suggest such disclosures would be uniformly appropriate or ethical. Obviously, the grounds for withholding records under the Freedom of Information Law relate in most instances to the ability to prevent some sort of harm. Inappropriate disclosures could work against the interests of a public body as a whole, such as a Board of Supervisors, and the public generally. Further, a unilateral disclosure by a member of a public body might serve to defeat or circumvent the principles under which those bodies are intended to operate. Historically, I believe that public bodies were created to order to reach collective determinations, determinations that better reflect various points of view within a community than a single decision maker could reach alone. Members of boards should not in my opinion be unanimous in every instance; on the contrary, they should represent disparate points of view which, when conveyed as part of a deliberative process, lead to fair and representative decision making. Nevertheless, notwithstanding distinctions in points of view, the decision or consensus by the majority of a public body should in my opinion be recognized and honored by those members who may dissent. Disclosures made contrary to or in the absence of consent by the majority or in a manner inconsistent with the policies or procedures adopted by a public body, such as those established under §87(1) of the Freedom of Information Law, could result in unwarranted invasions of personal privacy, impairment of collective bargaining negotiations or even interference with criminal or other investigations. In those kinds of situations, even though there may be no statute that prohibits disclosure, release of information could be damaging to individuals and the functioning of government.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Supervisors