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October 28, 1997

 

 

Mr. Frank V. Bifera
Acting General Counsel
NYS Department of Environmental Conservation
50 Wolf Road
Albany, NY 12233-5500

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. Bifera:

I have received your letter of October 7 in which you requested an advisory opinion "as to
whether information compiled pursuant to Chapter 279 of the Laws of 1996 (‘Pesticide Reporting
Law' or ‘PRL') qualifies as material that is specifically exempted from disclosure under the Freedom
of Information Law..."

The provision to which you referred has been codified as subdivision (2) of §33-1201 of the
Environmental Conservation Law, and you focused on the following language:

"The commissioner [of environmental conservation] shall not provide
the name, address, or any other information which would otherwise
identify a commercial or private applicator, or any person who sells or
offers for sale restricted use or general use pesticides to a private
applicator, or any person who received the services of a commercial
applicator."

In this regard, 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. The first ground for denial, §87(2)(a), pertains to records that "are
specifically exempted from disclosure by state or federal statute." From my perspective, the passage
quoted above clearly serves to exempt the information described therein from disclosure under the
Freedom of Information Law through the application of §87(2)(a).

The provision at issue constitutes a recent amendment to the Environmental Conservation
Law that appears to be intended to ensure that certain records are exempted from public disclosure.
While that passage does not make specific reference to the Freedom of Information Law, in
construing analogous language in a different statute, the Court of Appeals indicated that it has "never
held that a State statute must expressly state that it is intended to establish a FOIL exemption"
[Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. The Court noted, however, that there
must be "a showing of clear legislative intent to establish and preserve that confidentiality which one
resisting a FOIL disclosure claims as protection" (id.). Assuming that there is legislative history
suggesting an intent to ensure confidentiality, I believe that the information described in the provision
is question would be "specifically exempted from disclosure by...statute" and, therefore, beyond the
scope of rights conferred by the Freedom of Information Law.

If you would like to discuss the matter, please feel free to contact me.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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