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July 11, 2000

FOIL-AO-12201

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

I have received your letter of June 7. You wrote that the Southold Town Board has
designated an "Anti-Bias Task Force that serves "as a community resource to which the
public is encouraged to turn with complaints about bias-related incidents." The Task Force
"would like to maintain a logbook in order to keep a record of incidents by date, facts, names,
etc.", and you asked whether "the information in such a logbook [would] be available to the
public, including the individual complainant's name and type of bias incident reported." You
added that the Task Force is "concerned for individual privacy rights as they relate to bias
issues such as race, sexual orientation, religion, marital status, nationality."

In this regard, first, the logbook or any documentation maintained in relation to the
matter would fall within the scope of the Freedom of Information Law. As you may be
aware, that statute pertains to agency records, and §86(4) defines the term "record" broadly to
include:

"any information kept, held, filed, produced, reproduced by,
with or for an agency or the state legislature, in any physical
form whatsoever including, but not limited to, reports,
statements, examinations, memoranda, opinions, folders, files,
books, manuals, pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer tapes or discs,
rules, regulations or codes."

Second, 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. I note that the introductory language of §87(2)
refers to the ability to withhold "records or portions thereof" that fall within the grounds for
denial that follow. The phrase quoted in the preceding sentence indicates that there may be
instances in which a single record includes both accessible and deniable information, and that
an agency is required to review a record that has been requested to determine which portions,
if any, may properly be withheld.

Third, as you inferred, the exception to rights of access of primary significance
pertains to the protection of privacy, and §87(2)(b) permits an agency to deny access to
records insofar as disclosure would constitute "an unwarranted invasion of personal privacy."
In the context of your inquiry, irrespective of whether a complaint is made by an adult or a
minor, it has generally been advised that those portions of a complaint or other record which
identify complainants may be deleted on the ground that disclosure would result in an
unwarranted invasion of personal privacy. I point out that §89(2)(b) states that an "agency
may delete identifying details when it makes records available." Further, the same provision
contains five examples of unwarranted invasions of personal privacy, the last two of which
include:

"iv. disclosure of information of a personal nature when
disclosure would result in economic or personal hardship to the
subject party and such information is not relevant to the work
of the agency requesting or maintaining it; or

v. disclosure of information of a personal nature reported in
confidence to an agency and not relevant to the ordinary work
of such agency."

In my view, what is relevant to the work of the agency is the substance of the complaint, i.e.,
whether or not the complaint has merit. The identity of a member of the person who made
the complaint is often irrelevant to the work of the agency, and in most circumstances, I
believe that identifying details may be deleted.

If a complaint is directed at an individual and that person is accused of bias or
misconduct, I believe that his or her privacy may merit protection as well. When a complaint
is made against an individual, and the complaint has not been substantiated, identifying
details pertaining to the person against whom the complaint is made may, in my opinion, also
be withheld or deleted.

It is suggested that a logbook or similar document be formatted in a way that enables
Town officials to identify and separate those items which typically may be withheld from
other aspects of the records, such as a description of an event or incident, the status of
investigation, and other elements that do not included personally identifying details, that
should be disclosed.

I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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