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June 8, 1999

 

Gary Fusfield, Esq.
1067 Park Avenue
New York, NY 10128

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..Fusfield:

I have received your letter of May 7 and the materials attached to it. You have
questioned whether a denial of access to records by the Workers' Compensation Board was
consistent with law and an opinion previously prepared by this office at your request.

In brief, you requested that you be granted access to "the name, address and business
relationships of all persons or entities currently under investigation by the Workers'
Compensation Board." The request was denied on the grounds that "disclosure would
constitute an unwarranted invasion of personal privacy and the records sought pertain to
current investigations." In a reference to an opinion that I wrote on November 20, 1998, you
focused on a decision that I cited construing the federal Freedom of Information Act in which
it was stated that "The privacy exemption does not apply to information regarding
professional or business activities...This information must be disclosed even if a professional
reputation may be tarnished [Cohen v. Environmental Protection Agency, 575 F. Supp. 425
(D.C.D.C. 1983)].

The opinion prepared in November involved the legality of a public announcement
made by a Compensation Claims Referee that your business practices were under
investigation. Following a lengthy analysis of the issue, it was advised that the Personal
Privacy Protection Law would not have prohibited the disclosure of that information.

It appears that the Workers' Compensation Board may differ with that analysis.
Nevertheless, I believe that a different provision would enable the Board to withhold the
records in question.

In its denial of your request, the Board's records access officer wrote that disclosure
would constitute an unwarranted invasion of privacy under §87(2)(b) of the Freedom of
Information Law, and he also wrote that §95(5)(a) of the Personal Privacy Protection Law
"provides that an agency may exempt from disclosure personal information regarding a data
subject, ‘if such information is compiled for law enforcement purposes and would if
disclosed...(1) interfere with law enforcement investigations or judicial proceedings." In my
view, §95(5)(1) would not be applicable, for it involves an exception to rights of access when
a person seeks records pertaining to himself or herself. Your request did not involve records
about yourself, but rather about others who may be subjects of investigations.

Notwithstanding the foregoing, I believe that §87(2)(e)(i) of the Freedom of
Information Law is pertinent and applicable. That provision permits an agency with withhold
records compiled for law enforcement purposes when disclosure would "interfere with law
enforcement investigations or judicial proceedings." If an individual becomes aware that he
or she is the subject or knows of the details of an investigation, he or she could tailor his or
her activities so as to evade detection, destroy records or evidentiary material, or engage in
other actions designed to frustrate a government agency's investigation.

Irrespective of whether disclosure might constitute an unwarranted invasion of
personal privacy, when §87(2)(e)(i) or any other ground for denial, can properly be asserted,
I believe that an agency may justifiably withhold records.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: David C. Gannon