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December 28, 1998

 

Mr. Martin T. Reid
Director of Issue Management
State University of New York
State University Plaza
Albany, NY 12246

Dear Mr. Reid:

I appreciate receipt of a copy of your determination rendered in response to an appeal by
J.R. Romanko under the Freedom of Information Law. While it is possible that some aspects of
the records sought might justifiably have been withheld, it is my view that most should have
been disclosed. In this regard, I offer the following comments.

By way of background, on July 2, Mr. Romanko sent a request to the State University at
Stony Brook in which he sought "all materials" in the file pertaining to Dr. Michael Swango,
records indicating the hospitals where he worked and the periods of his work, and records
identifying "residents, other doctors, and nurses who worked at Stony Brook Hospital, the VA
Hospital in Northport, or any other hospital at the same time as Swango..." Although Swango
had apparently pleaded guilty to certain crimes, the request was initially denied "on the basis
that...disclosure could negatively impact on pending law enforcement investigations (See Public
Officers Law, Section 2(e) and (2)(f))." Following the appeal, you affirmed, stating that the
records are being used in an ongoing investigation by the Office of the U.S. Attorney, and that
you were advised by the U.S. Attorney that disclosure would "interfere with" that investigation in
accordance with §87(2(e) of the Freedom of Information Law.

As you are aware, 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.

The provision that you cited as the basis for the denial, §87(2)(e), permits an agency to
withhold records "compiled for law enforcement purposes" under certain circumstances, i.e.,
when disclosure would interfere with an investigation. Nevertheless, the records sought were
prepared in the ordinary course of business, likely long before any investigation was
commenced.

To characterize the records at issue as having been compiled for law enforcement
purposes, even though they may be used in or pertinent to an investigation, would be inconsistent
with both the language and the judicial interpretation of the Freedom of Information Law. The
Court of Appeals has held on several occasions that the exceptions to rights of access appearing
in §87(2) "are to be narrowly construed to provide maximum access, and the agency seeking to
prevent disclosure carries the burden of demonstrating that the requested material falls squarely
within a FOIL exemption be articulating a particularized and specific justification for denying
access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, M. Farbman & Sons
v. New York City Health and Hospitals Corp., 62 NY 2d 75, 80 (1984); Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)]. Based upon the thrust of those decisions, §87(2)(e) should be
construed narrowly in order to foster access. Further, there is case law that illustrates why
§87(2)(e) should be construed narrowly, and why a broad construction of that provision would
give rise to an anomalous result. Specifically, in King v. Dillon (Supreme Court, Nassau
County, December 19, 1984), the District Attorney was engaged in an investigation of the
petitioner, who had served as a village clerk. In conjunction with the investigation, the District
Attorney obtained minutes of meetings of the village board of trustees. Those minutes, which
were prepared by the petitioner, were requested from the District Attorney. In granting access to
the minutes, the decision indicated that "the party resisting disclosure has the burden of proof in
establishing entitlement to the exemption," and the judge wrote that he:

"must note in the first instance that the records sought were not compiled for law
enforcement purposes (P.O.L. 87[2]e). Minutes of Village Board meetings serve a different
function...These were public records, ostensibly prepared by the petitioner, so there can be little
question of the disclosure of confidential material."

Often records prepared in the ordinary course of business, which might already have been
disclosed under the Freedom of Information Law, become relevant to or used in a law
enforcement investigation or perhaps in litigation. In my view, when that occurs, the records
would not be transformed into records compiled for law enforcement purposes. If they would
have been available prior to their use in a law enforcement context, I believe that they would
remain available, notwithstanding their use in that context for a purpose inconsistent with the
reason for which they were prepared.

The decision cited above, Capital Newspapers, supra, dealt with records analogous to
those requested, and the Court of Appeals determined that documents indicating the days and
dates of sick leave claimed by a particular employee must be disclosed. On the basis of that
decision, it is clear in my view that records identifying certain public employees and their periods
of employment at a public institution must be disclosed. Similarly, payroll information
indicating the name, public office address, title and salary of every public employee must be
maintained and made available pursuant to §87(3)(b) of the Freedom of Information Law.
Consequently, those items pertaining to persons who worked with Dr. Swango at Stony Brook
hospital would have been compiled in the ordinary course of business, not for a law enforcement
purpose, and would have been available at the time of their employment or, in my view, any time
thereafter. From my perspective, to comply with law, they should be made available now to Mr.
Romanko.

In sum, notwithstanding the advice of the U.S. Attorney, I believe that reliance on
§87(2)(e) of the Freedom of Information Law is misplaced and the records described above
should be disclosed.

If you would like to discuss the matter, please feel free to contact me. I hope that I have
been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: J.R. Romanko