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  June 26, 1998

Ms. Carolyn Schurr
Newsday
235 Pinelawn Road
Melville, NY 11747

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. Schurr

I have received your correspondence of June 8 in which you questioned the propriety
of a denial of your appeal to the New York City Department of Investigation.

According to the materials, Newsday sought records reflective of "the results of any
investigation DOI or its inspectors general did regarding Sylvia Maraia, a deputy
commissioner in the Department of Housing Preservation and Development, and/or HPD's
sale of city property to the Congress of Italian-American Organizations." The initial denial
of access cited §87(2)(b) of the Freedom of Information Law concerning an unwarranted
invasion of personal privacy and §87(2)(e), which authorizes an agency to withhold records
compiled for law enforcement purposes under certain circumstances. That denial was
affirmed following your appeal, citing §87(2)(e) and reiterating that disclosure "would
interfere with law enforcement investigations, deprive a person of a right to a fair trial or
impartial adjudication, or reveal confidential information relating to a criminal investigation."

While it is possible that some elements of the records sought might justifiably be
withheld, the expressed basis for the affirmance of the denial is, in my opinion, inadequate.
Further, based on judicial decisions, it is likely that a blanket denial of access to the records
sought is inconsistent with law. In this regard, I offer the following comments.

First, §89(4)(a) of the Freedom of Information Law pertains to the right to appeal a
denial of access to records and requires that an agency's determination of an appeal must
either grant access to the records or "fully explain in writing... the reasons for further denial."
In this instance, the determination following your appeal merely repeated a rationale
expressed in the initial denial of access and essentially reiterated the statutory language of
§87(2)(e). From my perspective, the response to the appeal could not be characterized as
having "fully explained" the reasons for further denial. I note that the Department of
Investigation was criticized in Lewis v. Giuliani (Supreme Court, New York County, NYLJ,
May 1, 1997) for a denials of access also based merely on a reiteration of the statutory
language of an exception, stating that "DOI may not engage in mantra-like invocation of the
personal privacy exemption in an effort to 'have carte blanche to withhold any information it
pleases'". In this instance, the "law enforcement purposes" exception appears to have been
used in much the same manner.

Second, in a related vein, the denial appears to be inconsistent with the language and
intent of the Freedom of the Freedom of Information Law and its judicial construction. In
short, it appear to evince a refusal to follow or recognize the clear direction provided by not
only in Lewis, but also by the Court of Appeals court, in Gould v. New York City Police
Department, [87 NY 2d 267 (1996)].

Perhaps most importantly, 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. It is emphasized that the introductory language of §87(2)
refers to the authority to withhold "records or portions thereof" that fall within the scope of
the exceptions that follow. In my view, the phrase quoted in the preceding sentence
evidences a recognition on the part of the Legislature that a single record or report, for
example, might include portions that are available under the statute, as well as portions that
might justifiably be withheld. That being so, I believe that it also imposes an obligation on
an agency to review records sought, in their entirety, to determine which portions, if any,
might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals reiterated its general view of the intent of the Freedom of
Information Law in Gould, stating that:

"To ensure maximum access to government records, the
'exemptions are to be narrowly construed, with the burden
resting on the agency to demonstrate that the requested
material indeed qualifies for exemption' (Matter of Hanig v.
State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106,
109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers
Law § 89[4][b]). As this Court has stated, '[o]nly where the
material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld'
(Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419
N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial
of access to records is inconsistent with the requirements of the Freedom of Information Law.
In that case, the Police Department contended that complaint follow up reports could be
withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception separate from those cited in response to your
request. The Court, however, wrote that: "Petitioners contend that because the complaint
follow-up reports contain factual data, the exemption does not justify complete nondisclosure
of the reports. We agree" (id., 276), and stated as a general principle that "blanket
exemptions for particular types of documents are inimical to FOIL's policy of open
government" (id., 275). The Court also offered guidance to agencies and lower courts in
determining rights of access and referred to several decisions it had previously rendered,
stating that:

"...to invoke one of the exemptions of section 87(2), the
agency must articulate 'particularized and specific justification'
for not disclosing requested documents (Matter of Fink vl.
Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393
N.E.2d 463). If the court is unable to determine whether
withheld documents fall entirely within the scope of the
asserted exemption, it should conduct an in camera inspection
of representative documents and order disclosure of all
nonexempt, appropriately redacted material (see, Matter of
Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490
N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons
v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d,
at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In the context of your request,the Department has engaged in a blanket denial of
access in a manner which, in my view, is equally inappropriate. I am not suggesting that the
records sought must be disclosed in full. Rather, based on the direction given by the Court
of Appeals in several decisions, the records must be reviewed by the Department for the
purpose of identifying those portions of the records that might fall within the scope of one or
more of the grounds for denial of access. As the Court stated later in the decision: "Indeed,
the Police Department is entitled to withhold complaint follow-up reports, or specific
portions thereof, under any other applicable exemption, such as the law-enforcement
exemption or the public-safety exemption, as long as the requisite particularized showing is
made" (id., 277; emphasis added).

In sum, I believe that the basis for the denial of your appeal was incomplete and
inadequate, and that the blanket denial of the request was inconsistent with law.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, a copy of this opinion will be forwarded to the General Counsel to the
Department.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Alain M. Bourgeois