July 31, 2000
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
I have received your letter and apologize for the delay in response. You have sought
guidance concerning the meaning of the phrases "instructions to staff that affect the public"
and "final agency policy or determinations", which are generally available, respectively,
under subparagraphs (ii) and (iii) of §87(2)(g) of the Freedom of Information Law.
In this regard, there is little decisional law that deals directly with those provisions.
However, in a letter addressed to me dated July 21, 1977 by the sponsor of the revised
Freedom of Information Law, former Assemblyman Mark Siegel indicated that §87(2)(g) is
intended to insure that "any so-called ‘secret law' of an agency be made available", such as
the policy "upon which an agency relies" in carrying out its duties. Typically, agency
guidelines, procedures, staff manuals and the like provide direction to an agency's employees
regarding the means by which they perform their duties. Some may be "internal", in that
they deal solely with the relationship between an agency and its staff. Others may provide
direction in terms of the manner in which staff performs its duties in relation to or that affects
the public, which would ordinarily be public. To be distinguished would be advice, opinions
or recommendations that may be accepted or rejected. An instruction to staff, a policy or a
determination each would represent a matter that is mandatory or which represents a final
step in the decision making process.
While instructions to staff that affect the public and final agency policies or
determinations are generally accessible, there may be instances in which those records or
portions thereof may be withheld.
Perhaps most relevant would be §87(2)(e)(iv). The leading decision concerning that
provision is Fink v. Lefkowitz, which involved access to a manual prepared by a special
prosecutor that investigated nursing homes in which the Court of Appeals held that:
"The purpose of this exemption is obvious. Effective law
enforcement demands that violators of the law not be apprised
the nonroutine procedures by which an agency obtains its
information (see Frankel v. Securities & Exch. Comm., 460
F2d 813, 817, cert den 409 US 889). However beneficial its
thrust, the purpose of the Freedom of Information Law is not to
enable persons to use agency records to frustrate pending or
threatened investigations nor to use that information to
construct a defense to impede a prosecution.
"To be distinguished from agency records compiled for law
enforcement purposes which illustrate investigative techniques,
are those which articulate the agency's understanding of the
rules and regulations it is empowered to enforce. Records
drafted by the body charged with enforcement of a statute
which merely clarify procedural or substantive law must be
disclosed. Such information in the hands of the public does not
impede effective law enforcement. On the contrary, such
knowledge actually encourages voluntary compliance with the
law by detailing the standards with which a person is expected
to comply, thus allowing him to conform his conduct to those
requirements (see Stokes v. Brennan, 476 F2d 699, 702;
Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795;
Davis, Administrative Law [1970 Supp], section 3A, p 114).
"Indicative, but not necessarily dispositive of whether
investigative techniques are nonroutine is whether disclosure of
those procedures would give rise to a substantial likelihood that
violators could evade detection by deliberately tailoring their
conduct in anticipation of avenues of inquiry to be pursued by
agency personnel (see Cox v. United States Dept. of Justice,
576 F2d 1302, 1307-1308; City of Concord v. Ambrose, 333 F
In applying those criteria to specific portions of the manual, which was compiled for law
enforcement purposes, the Court found that:
"Chapter V of the Special Prosecutor's Manual provides a
graphic illustration of the confidential techniques used in a
successful nursing home prosecution. None of those
procedures are 'routine' in the sense of fingerprinting or
ballistic tests (see Senate Report No. 93-1200, 93 Cong 2d Sess
). Rather, they constitute detailed, specialized methods
of conducting an investigation into the activities of a
specialized industry in which voluntary compliance with the
law has been less then exemplary.
"Disclosure of the techniques enumerated in those pages would
enable an operator to tailor his activities in such a way as to
significantly diminish the likelihood of a successful
prosecution. The information detailed on pages 481 and 482 of
the manual, on the other hand, is merely a recitation of the
obvious: that auditors should pay particular attention to
requests by nursing homes for Medicaid reimbursement rate
increases based upon projected increase in cost. As this is
simply a routine technique that would be used in any audit,
there is no reason why these pages should not be disclosed" (id.
As the Court of Appeals has suggested, to the extent that the records in question
include descriptions of investigative techniques which if disclosed would enable potential
lawbreakers to evade detection or endanger the lives or safety of law enforcement personnel
or others [see also, Freedom of Information Law, §87(2)(f)], a denial of access would be
appropriate. I would conjecture, however, that not all of the investigative techniques or
procedures contained in the records sought incident and the ensuing investigation could be
characterized as "non-routine", and that it is unlikely that disclosure of each aspect of the
records would result in the harmful effects of disclosure described above.
The other provision that may be pertinent as a basis for denial is §87(2)(f). Again,
that provision permits an agency to withhold records insofar as disclosure "would endanger
the life or safety of any person." If, for example, disclosure of an instruction to staff or
policy would jeopardize the lives or safety of public employees or others, the cited provision
might be applicable.
I hope that I have been of assistance.
Robert J. Freeman