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May 23, 1997

 

 

 

Mr. Roger Scales
Field Representative
NYS Public Employees Federation
P.O. Box 12414
Albany, NY 12212-2414

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 Mr. Scales:

I have received your letter of May 8, in which you requested
an interpretation of the Personal Privacy Protection Law.

According to your letter, the Division of State Police
requires job applicants for the position of Forensic Scientist to
undergo a polygraph exam. In conjunction with that exam, you wrote
that a "document is created that includes the examiner's
observations", which are used with other investigative records to
determine whether to employ an individual. You indicated that if
an applicant is not hired, the documentation is retained for three
years. If the person is hired, the documentation becomes a
permanent part of a file on the individual. Further, the records
at issue are not kept in a Personal History File accessible to the
individual, but rather in a separate "other" file.

You have asked whether an individual has rights of access to
the file that contains the polygraph results that is separate from
the Personal History File, and if he or she cannot gain access to
the entire file, whether that person would have the right to view
the polygraph results.

In this regard, there is a judicial decision which appears to
deal with the kinds of records to which you have referred. In that
decision, it was determined, in brief, that the records fell beyond
the scope of a data subject's rights of access under the Personal
Privacy Protection Law.

Although §95(1) of that statute generally grants rights of
access to records to a person to whom the records pertain, §95(7)
provides that rights of access conferred by that statute "shall not
apply to public safety agency records". The phrase "public safety
agency record" is defined by §92(8) to mean:

"a record of the commission of corrections,
the temporary state commission of
investigation, the department of correctional
services, the division for youth, the division
of probation or the division of state police
or of any agency of component thereof whose
primary function is the enforcement of civil
or criminal statutes if such record pertains
to investigation, law enforcement, confinement
of persons in correctional facilities or
supervision of persons pursuant to criminal
conviction or court order, and any records
maintained by the division of criminal justice
services pursuant to sections eight hundred
thirty-seven, eight hundred thirty seven-a,
eight hundred thirty-seven-c, eight hundred
thirty-eight, eight hundred thirty-nine, eight
hundred forty-five, and eight hundred forty-five-a of the executive law."

Therefore, rights of access granted by the Personal Privacy
Protection Law do not extend to records of agencies or units within
agencies whose primary functions involve investigation, law
enforcement or the confinement or persons in correctional
facilities.

In O'Shaughnessy v. NYS Division of State Police [202 AD2d 508
(1994)], the petitioner requested records concerning the rejection
of his application for a position as State Trooper. In considering
the material at issue, it was stated that:

"...we find that it is not subject to
disclosure because it consists of 'public
safety agency records' to which the statute
does not apply (Public Officers Law § 95 [7];
see generally, Matter of Building a Better N.
Y. Commn. v. New York State Commn. on Govt.
Integrity, 138 Misc 2d 829). A public safety
agency record is defined in relevant part, as
'a record of * * * the division of state
police * * * if such record pertains to
investigation' (Public Officers Law § 92 [8]).
The material sought by the petitioner consists
entirely of evaluative documents gathered by
the New York State Police pursuant to an
extensive investigation into his background
and qualifications for the position of New
York State Trooper; hence, disclosure under
Public Officers Law § 95 is inapplicable.
Moreover, disclosure of such material would
clearly impede the investigation of candidates
for positions in the New York State Police and
would interfere with the Superintendent's
broad discretion in this area (see, Executive
Law § 215; Matters of Shedlock v Connelie, 66
AD2d 433, supra) (id., 510-511).

In short, due to the similarity between the situation that you
described and the records at issue in O'Shaughnessy, again, it
appears that the Personal Privacy Protection Law would not serve as
a vehicle under which the subject of the records could gain access
to them.

It is possible, however, that some aspects of what you
characterized as the "other" file would be available to the subject
of the file under the Freedom of Information Law. That statute 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 kinds of records to which you referred, such as those
prepared in conjunction with a polygraph exam, urinalysis, drug
testing and the like, would constitute intra-agency materials.
Those kinds of materials fall within the scope of §87(2)(g), which
permits an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those
portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

As such, evaluative materials and similar subjective comments
or opinions could be withheld under §87(2)(g). However, insofar as
the materials consist of statistical or factual information, I
believe that they would be available to the subject of the records,
unless a different ground for denial applies.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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