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October 22,1999

 

Ms. Carolyn Schurr
General Counsel
Newsday
235 Pinelawn Road
Melville, NY 11747

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, unless otherwise indicated.

Dear Ms. Schurr:

I have received your letter of September 3, as well as the documentation attached to
it. In brief, Newsday reporter Joie Tyrell sought records from the Town of Babylon. Ms.
Tyrell requested records pertaining to SOLAR International Trading Corp., Adam Barsky,
and communications between the Town and New York City agencies, as well as the Office
of the New York County District Attorney. The Town Attorney determined to disclose a
number of pages, but only after redacting essentially the entirety of their contents; other than
the name of a person to whom correspondence was addressed and a closing signature by the
Town Attorney, or the tops of pages that identify documents as "Subpoena Duces Tecum",
the contents of the records were fully deleted.

The Town Attorney wrote that the "collective basis" for the Town's denial of access
involves §87(2)(e)(i) of the Freedom of Information Law, Criminal Procedure Law,
§190.25(4)(a) and the Penal Law, §215.70. Section 87(2)(e) authorizes an agency to
withhold records compiled for law enforcement purposes insofar as disclosure "would
interfere with law enforcement investigations or judicial proceedings." The provisions of the
Criminal Procedure Law and the Penal Law cited by the Town Attorney refer to disclosure
of information used or presented in grand jury proceedings.

From my perspective, based upon the language of the Freedom of Information Law
and its judicial interpretation, the denial of access by the Town is overbroad. While there may
be some elements of the records that might justifiably be withheld, I believe that others must
be disclosed. In this regard, I offer the following comments.

First and perhaps most importantly, 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. It is emphasized that the introductory
language of §87(2) refers to the authority to withhold "records or portions thereof" that fall
within the scope of the exceptions that follow. In my view, the phrase quoted in the
preceding sentence evidences a recognition on the part of the Legislature that a single record
or report, for example, might include portions that are available under the statute, as well as
portions that might justifiably be withheld. That being so, I believe that it also imposes an
obligation on an agency to review records sought, in their entirety, to determine which
portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals reiterated its general view of the intent of the Freedom of
Information Law in 1996 in Gould v. NYC Police Department (89 NY2d 267), stating that:

"To ensure maximum access to government records, the
'exemptions are to be narrowly construed, with the burden
resting on the agency to demonstrate that the requested
material indeed qualifies for exemption' (Matter of Hanig v.
State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106,
109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers
Law § 89[4][b]). As this Court has stated, '[o]nly where the
material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld'
(Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419
N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial
of access to records is inconsistent with the requirements of the Freedom of Information Law.
In that case, the Department contended that DD5's could be withheld in their entirety on the
ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an
exception separate from those cited in response to your requests. The Court, however, wrote
that: "Petitioners contend that because the complaint follow-up reports contain factual data,
the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276),
and stated as a general principle that "blanket exemptions for particular types of documents
are inimical to FOIL's policy of open government" (id., 275). The Court also offered
guidance to agencies and lower courts in determining rights of access and referred to several
decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the
agency must articulate 'particularized and specific justification'
for not disclosing requested documents (Matter of Fink vl.
Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393
N.E.2d 463). If the court is unable to determine whether
withheld documents fall entirely within the scope of the
asserted exemption, it should conduct an in camera inspection
of representative documents and order disclosure of all
nonexempt, appropriately redacted material (see, Matter of
Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490
N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons
v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d,
at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In the context of Ms. Tyrell's requests, rather than citing §87(2)(g) as a basis for a
blanket denial of access to the records as in Gould, the Town has engaged in a blanket denial
citing other provisions in a manner which, in my view, is equally inappropriate. I am not
suggesting that the records sought must be disclosed in full. Rather, based on the direction
given by the Court of Appeals in several decisions, the records must be reviewed by the Town
for the purpose of identifying those portions of the records that might fall within the scope
of one or more of the grounds for denial of access. As the Court stated later in the decision:
"Indeed, the Police Department is entitled to withhold complaint follow-up reports, or
specific portions thereof, under any other applicable exemption, such as the law-enforcement
exemption or the public-safety exemption, as long as the requisite particularized showing is
made" (id., 277; emphasis added).

Second, to characterize all of 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,
case law 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 "pursuant to a Grand Jury subpoena." 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, some of 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.

In my view, many of the kinds of records requested, by their nature, indicate that the
exception concerning records "compiled for law enforcement purposes" is inapplicable. To
contend that records prepared for purposes wholly unrelated to any law enforcement
investigation may now be withheld due to their use in an investigation would, in my opinion,
be unreasonable and subvert the purposes of the Freedom of Information Law. In support
of this view, I again point to the decision rendered by the Court of Appeals in Capital
Newspapers, supra. In its discussion of the intent of the Freedom of Information Law, the
court found that the statute:

"affords all citizens the means to obtain information
concerning the day-to-day functioning of the state and local
government thus providing the electorate with sufficient
information to 'make intelligent, informed choices with respect
to both the direction and scope of governmental activities' and
with an effective tool for exposing waste, negligence or abuse
on the part of government officers" (id. at 566).

Contracts, vouchers and other materials regarding SOLAR, its contract with the Town
and the termination of that contract clearly would have been prepared not for law
enforcement purposes, but in the ordinary course of business. Similarly, my understanding
is that Adam Barsky is a former Town employee. While various aspects of his personnel file
might justifiably be withheld, personnel records typically are prepared in the ordinary course
of business and not for any law enforcement purpose.

It is emphasized that there is nothing in the Freedom of Information Law that deals
specifically with personnel records or personnel files. Further, the nature and content of so-
called personnel files may differ from one agency to another, and from one employee to
another. In any case, neither the characterization of documents as "personnel records" nor
their placement in personnel files would necessarily render those documents "confidential" or
deniable under the Freedom of Information Law (see Steinmetz v. Board of Education, East
Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980). On the contrary, the contents of
those documents serve as the relevant factors in determining the extent to which they are
available or deniable under the Freedom of Information Law. In most instances, two of the
grounds for denial are pertinent in ascertaining rights of to personnel records.

Section 87(2)(b) permits an agency to withhold records to the extent that disclosure
would constitute "an unwarranted invasion of personal privacy". While the standard
concerning privacy is flexible and may be subject to conflicting interpretations, the courts
have provided substantial direction regarding the privacy of public officers employees. It is
clear that public officers and employees enjoy a lesser degree of privacy than others, for it has
been found in various contexts that public officers and employees are required to be more
accountable than others. With regard to records pertaining to public officers and employees,
the courts have found that, as a general rule, records that are relevant to the performance of
a their official duties 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) (reprimands); Gannett Co. v. County of Monroe,
59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978) (payroll information and dates of
employment); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980) (disciplinary action);
Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March
25, 1981 (a settlement reached following the initiation of disciplinary charges); 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)
(disciplinary action); Steinmetz v. Board of Education, East Moriches, supra (dates of
employment, courses taken by teachers, etc.); Capital Newspapers v. Burns, 67 NY 2d 562
(1986) (days and dates of sick leave)]. Conversely, to the extent that records are irrelevant
to the performance of one's 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 (membership in a union); Seelig v. Sieloff, 201 AD2d
298 (1994) (social security numbers)].

The other ground for denial of significance, §87(2)(g), states that an agency may
withhold 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. Insofar as a request involves final agency determinations, I
believe that those determinations must be disclosed, again, unless a different ground for denial
could be asserted.

In terms of the judicial interpretation of the Freedom of Information Law, in situations
in which allegations or charges have resulted in the issuance of a written reprimand,
disciplinary action, or findings that public employees have engaged in misconduct, records
reflective of those kinds of determinations have been found to be available, including the
names of those who are the subjects of disciplinary action [see Powhida v. City of Albany,
147 AD 2d 236 (1989); also Farrell, Geneva Printing, Scaccia and Sinicropi, supra].

In contrast, when allegations or charges of misconduct have not yet been determined
or did not result in disciplinary action or a finding of misconduct, the records relating to such
allegations may, in my view, be withheld, for disclosure would result in an unwarranted
invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse,
430 NYS 2d 460 (1980)]. Similarly, to the extent that charges are dismissed or allegations
are found to be without merit, I believe that they may be withheld.

Communications between the Town and an office of a district attorney or other
agency would constitute inter-agency materials. In addition, those kinds of records might
have been compiled for law enforcement purposes. In that event, §87(2)(e) indicates that an
agency may withhold those kinds of records insofar as disclosure would:

". 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."

Lastly, it appears that various Town records have been forwarded to other agencies.
If the Town continues to maintain copies of those records, it would be obliged to review
those records for the purpose of determining rights of access. I note that 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)].

A copy of this opinion will be forwarded to the Town Attorney.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: John J. Burke, Jr., Town Attorney