NY.gov Portal State Agency Listing

 

June 23, 1998

 

Ms. Charlene Heidorn
2452 Lakeside Drive
Ashville, NY l4710

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 Ms. Heidorn:

I have received your letter of June 3 in which you sought assistance in obtaining a
record from the Chautauqua County Department of Health.

You described a series of events concerning the flooding of your home. In an effort to
deal with the problem, you spoke with or contacted a variety of government officials. In
relation to the foregoing, you sought under the Freedom of Information Law the name of
the employee "at the Sewer District who turned [your] name into the Health Department."
The Chautauqua County Department of Health responded by explaining its "policy not to
disclose the names of complainants." The Director of Environmental Health Services
added that the report concerning the sewer connection "was made by the South and
Center Chautauqua Lake Sewer District."

If my understanding of the matter is accurate, that an official or employee of the Sewer
District contacted the Department of Health pertaining to your situation, it is my opinion
that a record identifying that person must be disclosed. In this regard, I offer the
following comments.

First, 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, º87(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 complaints, it has generally been advised that the substance of a
complaint made by a member of the public 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 º89(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 a member of the public 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.

Notwithstanding the foregoing, if my assumption is accurate, that the report regarding
your property was made by an employee of the Sewer District, that person presumably
was acting in the performance of his or her official duties. From my perspective, since a
person in that circumstance would not be acting as a member of the public, the exception
regarding the protection of personal privacy would not apply. There would be nothing
"personal" about the information; on the contrary, again, it would relate to a government
employee carrying out governmental duties. In a situation in which an effort was made to
"keep the names of...investigative employees undisclosed" under the privacy provisions, it
was held that records identifying those employees must be disclosed, for the names were
"relevant to the work of the agency requesting or maintaining" them and are "relevant
to the ordinary work of such agency" (see Lewis v. Giuliani, Supreme Court, New York
County, NYLJ, May 1, 1997).

If the Sewer District maintains a record identifying the employee who contacted the
Department of Health, it, too, I believe that it, too, would be obliged to disclose a record
identifying that employee upon receipt of a request made under the Freedom of
Information Law.

I note that the denial by the Director of Environmental Health Services made no
reference to your right to appeal the denial. The provision dealing with the right to appeal
a denial of access to records is found in º89(4)(a) of the Freedom of Information Law,
which 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
of the entity, or the person therefor designated by such 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."

Further, the regulations promulgated by the Committee on Open Government (21
NYCRR Part 1401), which govern the procedural aspects of the Law, state that:

"(a) The governing body of a public corporation or the head, chief
executive or governing body of other agencies shall hear appeals or
shall designate a person or body to hear appeals regarding denial of
access to records under the Freedom of Information Law.

(b) Denial of access shall be in writing stating the reason therefor
and advising the person denied access of his or her right to appeal to
the person or body established to hear appeals, and that person or
body shall be identified by name, title, business address and business
telephone number. The records access officer shall not be the appeals
officer" (section 1401.7).

It is also noted that the state's highest court has held that a failure to inform a person
denied access to records of the right to appeal enables that person to seek judicial review
of a denial. Citing the Committee's regulations and the Freedom of Information Law, the
Court of Appeals in Barrett v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to advise petitioner of the
availability of an administrative appeal in the office (see, 21 NYCRR
1401.7[b]) and failed to demonstrate in the proceeding that the
procedures for such an appeal had, in fact, even been established (see,
Public Officers Law [section] 87[1][b], he cannot be heard to
complain that petitioner failed to exhaust his administrative remedies"
[74 NY 2d 907, 909 (1989)].

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this opinion will be forwarded to the Department of Health
and the South and Center Chautauqua Lake Sewer District.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm

cc: Steven M. Johnson
John Poshka