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July 10, 1998

 

Mr. Chris Osborn
C & C Tobacco Outlet of Ithaca
109 North Meadow Street
Ithaca, NY 14850

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. Osborn:

I have received your undated letter, as well as the materials attached to it.

It is my understanding that you are a tobacconist and that the Tompkins Cortland
Cayuga Tobacco Control Coalition engaged in a "sting operation" that resulted in a finding
of a violation occurring at your place of business. You have sought the identities of those who
appeared at your store, for it is your view that you should be able to "face [your| accuser."
The Tompkins County Attorney has denied your request on the grounds that "the records
were compiled for law enforcement purposes and if disclosed would interfere with law
enforcement investigations" and that disclosure would result in "an unwarranted invasion of
privacy."

From my perspective, it is unlikely that you have the right under the Freedom of
Information Law to obtain the information sought. In this regard, I offer the following
comments.

First, as I interpret the situation, the Tompkins Cortland Cayuga Tobacco Coalition
is a citizens group that is not part of the government but is participating with the County in
efforts to enforce provisions of the Public Health Law. If that is so, I do not believe that the
County would be obliged to disclose records in the circumstance described that identify the
members of the Coalition. Further, the Coalition would not be subject to the Freedom of
Information Law, for it is not an "agency" [see Freedom of Information Law, §86(3)].

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 §87(2)(a)
through (i) of the Law.

One of the exceptions referenced by the County Attorney, §87(2)(b), authorizes an
agency to withhold records insofar as disclosure would constitute "an unwarranted invasion
of personal privacy." In my opinion, the identities of those involved in the sting operation are
largely irrelevant to the enforcement of the law by the County; what is relevant is whether a
violation of law occurred. The violation is not being prosecuted by the Coalition, but rather
by the County as a governmental entity. In short, I believe that the names of those who
appeared in your store are incidental to the matter, and that, consequently, the names could
be withheld based upon considerations of privacy.

The other provision referenced by the County Attorney, §87(2)(e), permits an agency
to withhold records that:

"are compiled for law enforcement purposes and which, if
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

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

Although I believe that §87(2)(b) pertaining to the protection of privacy would serve as a
valid basis for denying your request, based upon the language of §87(2)(e), it is unlikely in
my opinion that that provision would serve as a justifiable basis for withholding.

Lastly, the Public Health Law, §1399-ee, refers to hearings regarding violations. If
records identifying the members of the Coalition in whom you are interested are introduced
as evidence at such a hearing, I believe that those records would become part of the record
and would be available to you.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Henry W. Theisen, County Attorney