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July 17, 2000

 

FOIL-AO-12210

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 8 in which you requested an advisory opinion.

You referred to a situation in which the State Department of Health granted a request
to your client to engage in outside employment as a freelance writer, but with the following
restriction: "The employee may not use or disclose any information from agency sources,
including his employment, which would not be required to be disclosed under the NYS
Freedom of Information Law." You have questioned the propriety of the restriction.

In this regard, I believe that a response would be more appropriately made by the
State Ethics Commission, for the issue does not involve rights of access to records, but rather
the use of information in one's outside employment. Consequently, it is suggested that your
client seek guidance from that agency.

Notwithstanding the foregoing, I offer the following comments concerning the
restriction.

First, it may be difficult if not impossible to know the extent to which records may be
available under the Freedom of Information Law at a given time. As you are aware, that
statute 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. Most of the grounds for denial are
based on potentially harmful effects disclosure, which may change or diminish due to the
passage of time or the occurrence of certain events; records or portions of records might
justifiably be withheld today, but they may become available at some point in the future. For
example, a recommendation offered by staff concerning a change in policy may withheld
under §87(2)(g); but if the change is adopted by the decision maker, it becomes policy that
would be available under subparagraph (iii) of the cited provision. Similarly, a charge that
has not been proven in a disciplinary action against a public employee may be withheld on
the ground that disclosure would constitute "an unwarranted invasion of personal privacy"
[§87(2)(b)]; if the charge is later sustained and the employee is found to have engaged in
misconduct, the charge would likely be accessible. In short, an agency's ability to withhold
records may change over time.

Second, information about our jobs and our work is routinely disclosed, especially
verbally, even though the information communicated may be beyond the scope of public
rights of access conferred by the Freedom of Information Law. Relating that a person is tall
or short, young or old would, in my view, if contained in a record, constitute an unwarranted
invasion of personal privacy if disclosed. Nevertheless, that kind of disclosure is typical and
routine. A statement, such as: "I think our new system is great", that it "needs work", or that
"it will never work" is made often in the course of communicating; however, if those
opinions appeared in memoranda, they could be withheld, again under §87(2)(g). Further,
when information is obtained via oral communication or observation, the Freedom of
Information Law is, in my view, inapplicable.

Third, a restriction concerning the use of confidential information would, in my
opinion, be justifiable. However, "confidential" and "unavailable" or "deniable" under the
Freedom of Information Law, do not have the same meanings. When records are
"confidential", they cannot be disclosed, for a statute would forbid disclosure. In those
instances, the first ground for denial, §87(2)(a), would apply. As you are aware, that
provision pertains to records that "are specifically exempted from disclosure by state or
federal statute." In contrast, there are other situations in which records may be withheld, but
where there is nothing that would prohibit disclosure. As stated by the Court of Appeals, the
agency is not obliged to do so and may choose to disclose. As stated in that unanimous
decision: "...while an agency is permitted to restrict access to those records falling within the
statutory exemptions, the language of the exemption provision contains permissive rather
than mandatory language, and it is within the agency's discretion to disclose such records,
with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY2d
562, 567 (1986)]. By means of example, while opinions and recommendations contained in
intra-agency materials may be withheld, there is no obligation to withhold them or to require
that they be shielded from public view.

Lastly, it is reiterated that the validity of the kind of restriction at issue is beyond the
scope of the expertise of this office. However, enclosed is a copy of a decision rendered by
the U.S. Court of Appeals for the Second Circuit that may be pertinent to the matter (Harman
v. City of New York).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: John Conroy
Gene Therriault