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June 4, 1998

Mr. John H. Wilson
90-C-1017
Groveland Correctional Facility
P.O. Box 104
Sonyea, NY 14556

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. Wilson:

I have received your letter of May 11, as well as the correspondence attached to it.
You have sought an advisory opinion concerning your requests directed to the Division of
Parole.

Having reviewed the requests, I offer the following comments.

First, it is emphasized that the Freedom of Information Law pertains to existing records
and that º89(3) of the Law states in part that an agency is not required to create a record
in response to a request. One aspect of your request, for example, involves records that
provide an "exact definition of the meaning of an æapproved residence'"; another involves
records that "specif[y] the exact criteria used to make the final determination as to what
does and does not constitute an æapproved residence'." If there are no records that
provide an "exact definition" or that include " the exact criteria" in the context of your
request, the Division could not be required to prepare records on your behalf that include
the information sought in order to satisfy your request. Similarly, later in your request,
you sought "a complete list" of certain offices. If no such list exists, the Freedom of
Information Law would not require that the Division create a list on your behalf.

Second, insofar as agency records exist, 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 º87(2)(a) through (i) of the Law. Several of the grounds for denial
appear to be pertinent to an analysis of rights of access.

Virtually all the records sought would in my view constitute "intra-agency materials"
subject to º87(2)(g). That provision 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.

Also potentially relevant is º87(2)(e), which authorizes an agency deny access to
records that:

"are compiled for law enforcement purposes and which, if disclosed,
would:

i. interfere with law enforcement investigations of judicial
proceedings...

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information
relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except
routine techniques and procedures."

Under the circumstances, most relevant is º87(2)(e)(iv). The leading decision concerning
that provision is Fink v. Lefkowitz, which involved access to a manual prepared by a
special prosecutor that investigated nursing homes, in which the Court of Appeals held
that:

"The purpose of this exemption is obvious. Effective law enforcement
demands that violators of the law not be apprised the nonroutine
procedures by which an agency obtains its information (see Frankel v.
Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889).
However beneficial its thrust, the purpose of the Freedom of
Information Law is not to enable persons to use agency records to
frustrate pending or threatened investigations nor to use that
information to construct a defense to impede a prosecution.

"To be distinguished from agency records compiled for law
enforcement purposes which illustrate investigative techniques, are
those which articulate the agency's understanding of the rules and
regulations it is empowered to enforce. Records drafted by the body
charged with enforcement of a statute which merely clarify procedural
or substantive law must be disclosed. Such information in the hands
of the public does not impede effective law enforcement. On the
contrary, such knowledge actually encourages voluntary compliance
with the law by detailing the standards with which a person is
expected to comply, thus allowing him to conform his conduct to
those requirements (see Stokes v. Brennan, 476 F2d 699, 702;
Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795; Davis,
Administrative Law [1970 Supp], section 3A, p 114).

"Indicative, but not necessarily dispositive of whether investigative
techniques are nonroutine is whether disclosure of those procedures
would give rise to a substantial likelihood that violators could evade
detection by deliberately tailoring their conduct in anticipation of
avenues of inquiry to be pursued by agency personnel (see Cox v.
United States Dept. of Justice, 576 F2d 1302, 1307-1308; City of
Concord v. Ambrose, 333 F Supp 958). It is no secret that numbers
on a balance sheet can be made to do magical things by scrupulous
nursing home operators the path that an audit is likely to take and
alerting them to items to which investigators are instructed to pay
particular attention, does not encourage observance of the law.
Rather, release of such information actually countenances fraud by
enabling miscreants to alter their books and activities to minimize the
possibility or being brought to task for criminal activities. In such a
case, the procedures contained in an administrative manual are, in a
very real sense, compilations of investigative techniques exempt from
disclosure. The Freedom of Information Law was not enacted to
furnish the safecracker with the combination to the safe" (id. at
572-573).

In applying those criteria to specific portions of the manual, which was compiled for law
enforcement purposes, the Court found that:

"Chapter V of the Special Prosecutor's Manual provides a graphic
illustration of the confidential techniques used in a successful nursing
home prosecution. None of those procedures are 'routine' in the sense
of fingerprinting or ballistic tests (see Senate Report No. 93-1200, 93
Cong 2d Sess [1974]). Rather, they constitute detailed, specialized
methods of conducting an investigation into the activities of a
specialized industry in which voluntary compliance with the law has
been less then exemplary.

"Disclosure of the techniques enumerated in those pages would enable
an operator to tailor his activities in such a way as to significantly
diminish the likelihood of a successful prosecution. The information
detailed on pages 481 and 482 of the manual, on the other hand, is
merely a recitation of the obvious: that auditors should pay particular
attention to requests by nursing homes for Medicaid reimbursement
rate increases based upon projected increase in cost. As this is simply
a routine technique that would be used in any audit, there is no reason
why these pages should not be disclosed" (id. at 573).

While I am unfamiliar with the records in question, it would appear that those portions
which, if disclosed, would enable potential lawbreakers to evade detection could likely be
withheld. It is noted that in another decision which dealt with a request for certain
regulations of the State Police, the Court of Appeals found that some aspects of the
regulations were non-routine, and that disclosure could "allow miscreants to tailor their
activities to evade detection" [De Zimm v. Connelie, 64 NY 2d 860 (1985)].
Nevertheless, other portions of the records might be "routine" and might not if disclosed
preclude officers or employees from carrying out their duties effectively.

Also of possible significance is º87(2)(f). That provision permits an agency to withhold
records to the extent that disclosure "would endanger the life or safety of any person."

Another provision of potential relevance is º87(2)(a), which pertains to records that
"are specifically exempted from disclosure by state or federal statute." One such statute is
º168-l of the Correction Law concerning the Board of Examiners of Sex Offenders.
Subdivision (5) of º168- l requires that the Board develop guidelines " to assess the risk
of repeat offense by a sex offender and the threat posed to the public safety." Subdivision
(6) requires that the Board apply those guidelines and that it "shall...prior to the discharge,
parole or release of a sex offender make a recommendation which shall be confidential and
shall not be available for public inspection..."

Lastly, you asked what might "be consider[ed] to be an appropriate length of time to
wait before initiating an Article 78 proceeding to compel compliance." In this regard, the
Freedom of Information Law provides direction concerning the time and manner in which
agencies must respond to requests. Specifically, º89(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, 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 º89(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 º89(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)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: David Molik, Records Access Officer