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July 12, 2000

FOIL-AO-12205

FROM: Robert J. Freeman, Executive Director

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

As you are aware, I have received your letter of June 9 concerning a contention by the
New York City Conflicts of Interest Board that is not required to disclose the payroll record
required to be maintained by agencies pursuant to §87(3)(b) of the Freedom of Information
Law. An attorney for the Board cited provisions of the City Charter and the General
Municipal Law as the basis for his response.

In this regard, first, the provision of the General Municipal Law to which he referred,
§813, expired and is no longer operative. That statute dealt with the filing of financial
disclosure statements by municipal employees and the functions of the Temporary
Commission on Local Government Ethics, which is now defunct.

Section 2602(k) of the Charter states that:

"Except as otherwise provided in this chapter, the records,
reports, memoranda and files of the board shall be confidential
and shall not be subject to public scrutiny."

I am unaware of the legislative history or intent of the language quoted above. However, it
appears that it would preclude disclosure if it can be characterized as a statute. When
confidentiality is conferred by a statute, records fall outside the scope of rights of access
pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may
withhold records that "are specifically exempted from disclosure by state or federal statute".
If there is no statute upon which an agency can rely to characterize records as "confidential"
or exempted from disclosure, the records are subject to whatever rights of access exist under
the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington
Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State
Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)].

It is noted that several courts, including the Court of Appeals, have held that an
agency's regulations or the provisions of a local enactment, such as an administrative code,
local law, charter or ordinance, for example, do not constitute a "statute" [see e.g., Morris v.
Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82
Ad 2d 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS
2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)]. For
purposes of the Freedom of Information Law, a statute would be an enactment of the State
Legislature or Congress. Therefore, a local enactment cannot ordinarily confer, require or
promise confidentiality.

In the case of the New York City Charter, some of its provisions are purely local
enactments, while others were approved and enacted by the State Legislature. Therefore, if
§2603(k) is part of an enactment of the State Legislature, it would constitute a statute that
would exempt the Board's records from disclosure. If it is a local enactment, I believe that
the Board's records would be subject to rights conferred by the Freedom of Information Law.
This not to suggest that, in that event, all Board records would be available, for the grounds
for denial appearing in §87(2) could be asserted in appropriate circumstances.

I hope that I have been of assistance.

RJF:jm

cc: Wayne G. Hawley