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May 26, 1999

 

Mr. John Beatty
136 Fort Greene Place
Brooklyn, NY 11217

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. Beatty:

I have received your letter of April 30, as well as the materials related to it.

As I understand the matter, you requested and obtained a variety of personnel records
pertaining to yourself from the New York City Health and Hospitals Corporation in 1995. You
have complained now, however, that certain attachments referenced in a memorandum should
have been made available. The attachments consist of evaluations of your performance and
materials involving "derogatory comments against...co-workers (Attached) which are prohibited
by HHC, Local, State and Federal policies." You wrote that you are interested in obtaining the
attachments, including "a particularization" of the policies to which reference was made.

If you believed at the time that the records in question had been denied, as indicated by
the Corporation's records access officer, you could have appealed within thirty days. It is unclear
on the basis of your letter whether you appealed or whether the documents of your interest were
requested or withheld.

Under the circumstances, it is suggested that you submit a new request to the
Corporation's records access officer, supplying sufficient detail to enable staff to locate and
identify the records sought.

I note that the Freedom of Information Law pertains to existing records, and that §89(3)
of that statute states in part that an agency is not required to create a record in response to a
request. If, for example, the materials regarding derogatory remarks do not include a
"particularization" of policies allegedly violated, the Corporation in my view would not be
required to prepare a new record containing the information sought.

Insofar as the records sought exist, 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.

Potentially relevant in determining rights of access is §87(2)(g), which permits an agency
to deny access to records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the
comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While
inter-agency or intra-agency materials may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial
could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency
materials that are reflective of opinion, advice, recommendation and the like could in my view be
withheld.

While I am not familiar with the contents of the records, also of possible significance is
§87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy." If portions of the records identify or
pertain to persons other than yourself, that provision might, depending on the nature of the
information, be relevant.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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