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July 6, 1998

Mr. Gregory P. Klibansky
52 Jamaica Ave.
Holtsville, NY 11742

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. Klibansky:

Your letter of June 17 addressed to Governor Pataki has been forwarded to the
Committee on Open Government. The Committee, a unit of the Department of State, is
authorized to provide advice concerning the Freedom of Information Law.

In brief, you described a series of difficulties and delays in your attempts to gain
access to records from the Office of the Suffolk County District Attorney. As I understand
the matter, you requested any files maintained by that agency pertaining to you, and you
expressed particular interest in a claim made by an individual in a judicial proceeding that you
"surreptitiously faxed him some type of material." That individual also contended that the
incident was investigated by a detective, and you requested the name of the detective and
records relating to the contention and its investigation. Despite repeated attempts made by
phone and in writing to the Office of the District Attorney, it appears that you had received
no substantive response as of the date of your letter to the Governor.

From my perspective, several issues are pertinent to an analysis of the matter. In this
regard, I offer the following comments.

First, in an initial response to your request, it was stated that you did not "reasonably
describe" the records sought as required by the Freedom of Information Law [see §89(3)].
To meet that standard, an applicant is required to supply sufficient detail (i.e., names, dates,
indictment, index or docket numbers) to enable agency staff to locate and identify the records.
I point out that it has been held by the Court of Appeals, the State's highest court, that to
deny a request on the ground that it fails to reasonably describe the records, an agency must
establish that "the descriptions were insufficient for purposes of locating and identifying the
documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its
breadth and also stated that:
"respondents have failed to supply any proof whatsoever as to
the nature - or even the existence - of their indexing system:
whether the Department's files were indexed in a manner that
would enable the identification and location of documents in
their possession (cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192 [Bazelon, J.]
[plausible claim of nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3), may be presented
where agency's indexing system was such that 'the requested
documents could not be identified by retracing a path already
trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of
the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the
Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an
agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able
to locate the records on the basis of an inmate's name and identification number.

While I am unfamiliar with the record keeping systems of the Office of the District
Attorney, to extent that the records sought can be located with reasonable effort, I believe
that the request would have met the requirement of reasonably describing the records. On
the other hand, if the records are not maintained in a manner that permits their retrieval except
by reviewing perhaps hundreds or even thousands of records individually in an effort to locate
those falling within the scope of the request, to that extent, the request would not in my
opinion meet the standard of reasonably describing the records. If you were not a party to the
proceeding in which the issue of the fax arose, it is questionable in my view whether a request
for records pertaining to you, without additional detail, would meet the requirement of
reasonably describing the records.

Second, assuming that the records of your interest can be located, 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. Several of the
grounds for denial might be relevant in determining rights of access.

You did not indicate the outcome of the case. If the charges against the accused were
dismissed in his favor, the records would be sealed pursuant to §160.50 of the Criminal
Procedure and, therefore, would be exempted from disclosure by statute in accordance with
§87(2)(a) of the Freedom of Information Law.

If there was a conviction, much of the information sought would likely be accessible.
Insofar as the records were introduced or disclosed in a public judicial proceeding, they would
be available, even if one or more of the grounds would otherwise apply [see Moore v.
Santucci, 151 AD2d 677 (1989)]. If they were not introduced during the proceeding and are
not part of the public court record, the extent to which the records could be withheld would
be dependent on their contents. For example, if the records identify persons other than
yourself, such as witnesses or those interviewed as part of an investigation, of potential
relevance is §87(2)(b), which permits an agency to withhold records insofar as disclosure
would constitute "an unwarranted invasion of personal privacy." Also of possible relevance
is §87(2)(e), which authorizes an agency to withhold records that:

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

i. interfere with law enforcement investigations or 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

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

The extent to which the records of your interest could justifiably be withheld under the
provisions cited above would be largely dependent on the effects of disclosure.

Since you sought the name of a detective, I point out that public officers and
employees enjoy a lesser degree of privacy than others, for it has been found in various
contexts that those individuals are required to be more accountable than others. The courts
have found that, as a general rule, records that are relevant to the performance of the official
duties of a public officer or employee are available, for disclosure in such instances would
result in a permissible rather than an unwarranted invasion of personal privacy [see e.g.,
Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of
Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau,
76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup.
Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims,
1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State
Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East
Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67
NY 2d 562 (1986)]. Conversely, to the extent that items relating to public officers or
employees are irrelevant to the performance of their official duties, it has been found that
disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g.,
Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977, dealing with membership in
a union; Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving
the back of a check payable to a municipal attorney that could indicate how that person
spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social
security numbers].

It is also noted that in a recent decision, it was held that the names of investigative
employees of the New York City Department of Investigation must be disclosed. It was held
in Lewis v. Giuliani (Supreme Court, New York County, NYLJ, May 1, 1997) that:

"any effort by DOI to keep the names of its investigative
employees undisclosed under POL §89(2)(b)(iv) or (v) may
not succeed because information concerning the identities of
persons doing the agency's work is ‘relevant to the work of
the agency requesting or maintaining it' and is ‘relevant to the
ordinary work of such agency.' In addition, because the
purpose of the exemption is to prevent the ‘unwarranted
invasion of personal privacy' (emphasis added), 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' (Kheel v. Ravitch, 93 AD2d 422, 426;
affd 62 NY2d 1), especially with respect to information about
its employees."

Next, in view of the delays that you have encountered, I point out that the Freedom
of Information Law provides direction concerning the time and manner in which agencies
must respond to requests. Specifically, §89(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 §89(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 §89(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)].

Lastly, when an agency indicates that it does not maintain or cannot locate a record,
an applicant for the record may seek a certification to that effect. Section 89(3) of the
Freedom of Information Law provides in part that, in such a situation, on request, an agency
"shall certify that it does not have possession of such record or that such record cannot be
found after diligent search." If you consider it worthwhile to do so, you could seek such a
certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was
found that a court could not validly accept conclusory allegations as a substitute for proof that
an agency could not locate a record after having made a "diligent search". However, in
another decision, such an allegation was found to be sufficient when "the employee who
conducted the actual search for the documents in question submitted an affidavit which
provided an adequate basis upon which to conclude that a 'diligent search' for the documents
had been made" [Thomas v. Records Access Officer, 613 NYS 2d 929, 205 AD 2d 786
(1994)].

I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Joanne V. Smith, Assistant District Attorney