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May 1, 1997

 

 

 

Ms. Marla G. Simpson
The City of New York
Office of the President of the
Borough of Manhattan
Municipal Building
New York, NY 10007

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,
unless otherwise indicated.

Dear Ms. Simpson:

I have received your letter of April 16, as well as the
correspondence attached to it. You have sought an advisory opinion
on behalf of Manhattan Borough President Ruth Messinger concerning
the Freedom of Information Law.

By way of background, in your capacity as General Counsel to
the Borough President, on April 1, you requested from thirty-three
New York City agencies, first, all requests made under the Freedom
of Information Law from January 1, 1995 through March 21, 1997 that
were denied in whole or in part; second, all requests covering the
same period that an agency had not answered or completed its
response; and third, all correspondence between an agency and the
applicant for the records pertaining to first two categories of
requests.

One of the attachments to your letter to me is a copy of a
communication addressed to the Borough President by Paul A. Crotty,
Corporation Counsel, in which he advised that the Borough President
is not authorized by law "to review the FOIL operations of City
agencies" and that "it is inappropriate for City agencies to
respond to your request." I note in good faith that I have also
received a copy of a letter addressed to the Borough President by
Mr. Crotty on April 23 in which he reiterated his position.

In this regard, the functions of the Committee on Open
Government do not include the interpretation of the New York City
Charter or the resolution of issues pertaining to the powers and
duties of a borough president. However, it has been the practice
of the Committee since its creation and its duty under
§89(1)(b)(ii) of the Freedom of Information Law to "furnish to any
person advisory opinions or other appropriate information regarding
this article." Therefore, while I will not address the issue of
the authority of the Borough President, I offer the following
comments as I would with respect to any request for an advisory
opinion sought by a member of the public or government official.

As a general matter, 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, with the exception of portions of certain kinds of
requests, the records sought are accessible under the law.

In my view, the only instances in which the records at issue
may be withheld in part would involve situations in which, due to
the nature of their contensts, disclosure would constitute "an
unwarranted invasion of personal privacy" [see Freedom of
Information Law, §§87(2)(b) and 89(2)]. For instance, if a
recipient of public assistance seeks records pertaining to his or
her participation in a public assistance program, disclosure of the
request would itself indicate that he or she has received public
assistance. In that case, I believe that identifying details could
be deleted to protect against an unwarranted invasion of personal
privacy.

As stated by the Court of Appeals, the exception in the
Freedom of Information Law pertaining to the protection of personal
privacy involves details about one's life "that would ordinarily
and reasonably be regarded as intimate, private information" [Hanig
v. State Department of Motor Vehicles, 79 NY2d 106, 112 (1992)].
In most instances, a request or the correspondence pertaining to it
between the agency and the applicant for records does not include
intimate information about the applicant. For example, if a
request is made for an agency's budget, the minutes of a meeting of
a community board, or an agency's contract to purchase goods or
services, the request typically includes nothing of an intimate
nature about the applicant. Further, many requests are made by
firms, associations, or persons representing business entities. In
those cases, it is clear that there is nothing "personal" about the
requests, for they are made by persons acting in a business or
similar capacity (see e.g., American Society for the Prevention of
Cruelty to Animals v. NYS Department of Agriculture and Markets,
Supreme Court, Albany County, Nay 10, 1989; Newsday v. NYS
Department of Health, Supreme Court, Albany County, October 15,
1991).

Agencies have in some instances denied access because the
records sought do not reflect a final agency determination. That
kind of consideration might arise in the context of §87(2)(g),
which pertains to "inter-agency or intra-agency materials." I do
not believe that it is pertinent in the context of your inquiry,
because the records sought are neither inter-agency nor intra-agency materials; they consist of communications between members of
the public or persons representing business entities or community
groups, none of which constitute agencies [see definition of
"agency", §86(3)] and entities of City government. As such,
§87(2)(g) would not in my opinion serve as a basis for a denial of
access.

Among the attachments to your letter are several responses
from agencies, some of which are, in my view, inconsistent with the
requirements of the Freedom of Information Law. That statute
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 when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, if the
acknowledgement does not include an approximate date indicating
when a request will be granted or denied, or if an agency delays
responding for an unreasonable time after it acknowledges that a
request has been received, a request may, in my opinion, be
considered to have been constructively denied. In such a
circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision 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."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, 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 [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

Lastly, when records are available under the Freedom of
Information Law, their intended use is largely irrelevant [see M.
Farbman & Sons v. New York City Health & Hosps. Corp., 62 NY 2d 75
(1984); Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378
NYS 2d 165 (1976); Gould, Scott and DeFelice v. New York City
Police Department, 6523 NYS 2d 54, 89 NY 2d 267 (1996)].
Therefore, insofar as records are disclosed under that statute, I
believe that the recipient of the records may do with them as he or
she sees fit.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Paul A. Crotty, Corporation Counsel