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January 20, 1998




E-mail
TO: Jonathan Slosser<alarming@maestro.com>

Dear Mr. Slosser

Your communication of December 6 sent to the Department of State
has been forwarded to the Committee on Open Government. As you may
know, the Committee, a unit of the Department, is authorized to provide
advice concerning the Freedom of Information Law. You have asked whether
a complaint submitted to an agency is subject to that statute and whether you
"can find out who made the complaint."

In this regard, I offer the following comments.

First, all records maintained by a government agency fall within the
coverage of hte Freedom of Information Law. That statute pertains to agency
records and defines the term "record" to mean:

"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."

Due to the breadth of the definition, a complaint sent to an agency would
constitute a "record" subject to rights of access.

Second, 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 section 87(2)(a) through (i) of the
Law. When a complaint is made to an agency, §87(2)(b) of the Freedom of
Information Law is often relevant. That provision permits an agency to
withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy."

With respect to such complaints, it has generally been advised that the
substance of a complaint is available, but that those portions of the complaint
which identify complainants may be deleted on the ground that disclosure
would result in an unwarranted invasion of personal privacy. I point out that
§89(2)(b) states that an "agency may delete identifying details when it makes
records available." Further, the same provision contains five examples of
unwarranted invasions of personal privacy, the last two of which include:

"iv. disclosure of information of a personal
nature when disclosure would result in
economic or personal hardship to the subject
party and such information is not relevant to
the work of the agency requesting or
maintaining it; or

v. disclosure of information of a personal
nature reported in confidence to an agency and
not relevant to the ordinary work of such
agency."

In my view, what is relevant to the work of the agency is the substance of the
complaint, i.e., whether or not the complaint has merit. The identity of the
person who made the complaint is often irrelevant to the work of the agency,
and in such circumstances, I believe that identifying details may be deleted.
However, again, I believe that the remainder of the records must be disclosed.

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

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