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January 23, 2001

FOIL-AO-12492

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter in which you asked that this office "instruct" the Upstate
Correctional Facility to make available its list required to be maintained pursuant to §87(3)(c) of the
Freedom of Information Law. You contend that the records of your interest are "instructions to staff
that affect the public" that must be disclosed, and you referred specifically to guidelines followed
by the nursing and medical staff at the facility.

In this regard, it is noted at the outset that the primary function of the Committee on Open
Government involves providing advice and opinions relating to public access to government records.
The Committee is not empowered to compel an agency to grant or deny access to records. In an
effort to offer guidance, however, I offer the following comments.

First, the subject matter list referenced in the Freedom of Information Law is characterized
as a "master index" in the regulations promulgated by the Department of Correctional Services.
Section 87(3)(c) of the Freedom of Information Law, requires that each agency maintain:

"a reasonably detailed current list by subject matter, of all records in
the possession of the agency, whether or not available under this
article."

The subject matter list is not, in my opinion, required to identify each and every record of an agency;
rather I believe that it must refer, by category and in reasonable detail, to the kinds of records
maintained by an agency. Further, although a subject matter list is not prepared with respect to
records pertaining to a single individual, such a list should be sufficiently detailed to enable an
individual to identify a file category of the record or records in which that person may be interested.
I direct your attention to the regulations promulgated by the Department of Correctional Services,
which in §5.13 state that:

"(a) Every custodian of records under these regulations shall
maintain an up-to-date subject matter list, reasonably detailed, of all
records in their possession. The records access officer shall maintain
a master index, reasonably detailed, of all records maintained by the
department. The master index shall include the lists kept by all
custodians as well as a list of records maintained at the department's
central office.

(b) Each subject matter list and the master index shall be sufficiently
detailed to permit identification of the file category of the record
sought.

(c) The master index shall be updated not less than twice per year.
The most recent update shall appear on the first page of the subject
matter list. Each custodian of records and the records access officer
shall make available the index kept by him for inspection and
copying. Any person desiring a copy of such list may request in
writing a copy and upon payment of the appropriate fee, unless
waived, a copy of such list shall be mailed or delivered."

Based on the foregoing, it is clear in my view that a master index must be maintained and made
available for inspection at each facility.

Second, the subject matter list or master index is different from the records to which it refers.
Again, it is a categorization of the kinds of records maintained by an agency. The records
themselves may be accessible or deniable, in whole or in part, under other provisions of the Freedom
of Information Law.

With respect to access to the guidelines and similar records to which you alluded, as a general
matter, the Freedom of Information Law is based upon a presumption of access. Stated differently,
all record of an agency are available, except to the extent that records or portions thereof fall within
one or more of the grounds for denial appearing in §87(2)(a) through (i) of the Law. From my
perspective, insofar as records that are the subject of your inquiry exist, three of the grounds for
denial may be relevant to your inquiry.

Specifically, §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 basis for denial is
applicable. 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. It would appear that
the records would consist of instructions to staff that affect the public or an agency's policy.
Therefore, I believe that they would be available, unless a different basis for denial could be asserted.

A second provision of potential significance is §87(2)(e), which permits an agency to
withhold records that:

"are compiled for law enforcement purposes and which, if disclosed,
would:

i. interfere with law enforcement investigations of 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."

Under the circumstances, it appears that most relevant is §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 Supp 958). It is no secret that numbers
on a balance sheet can be made to do magical things by scrupulous
nursing home operators the path that an audit is likely to take and
alerting them to items to which investigators are instructed to pay
particular attention, does not encourage observance of the law.
Rather, release of such information actually countenances fraud by
enabling miscreants to alter their books and activities to minimize the
possibility or being brought to task for criminal activities. In such a
case, the procedures contained in an administrative manual are, in a
very real sense, compilations of investigative techniques exempt from
disclosure. The Freedom of Information Law was not enacted to
furnish the safecracker with the combination to the safe" (id. at
572-573).

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 [1974]). 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. at
573).

While I am unfamiliar with the records in question, it would appear that those portions
which, if disclosed, would enable potential lawbreakers to evade detection could likely be withheld.
It is noted that in another decision which dealt with a request for certain regulations of the State
Police, the Court of Appeals found that some aspects of the regulations were non-routine, and that
disclosure could "allow miscreants to tailor their activities to evade detection" [De Zimm v.
Connelie, 64 NY 2d 860 (1985)]. Nevertheless, other portions of the records might be "routine" and
might not if disclosed preclude employees from carrying out their duties effectively.

The remaining ground for denial of likely significance is §87(2)(f). That provision permits
an agency to withhold records when disclosure "would endanger the life of safety of any person."
To the extent that disclosure would endanger the life of safety of officers or others, it appears that
§87(2)(f) would be applicable.

In sum, while some aspects of the records, if they exist, might be accessible, others may in
my opinion be withheld in conjunction with the preceding commentary.

Lastly, the Freedom of Information Law provides direction concerning the time and manner
in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in writing or furnish a written
acknowledgement of the receipt of such request and a statement of
the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within
five business days, or if an agency delays responding for an unreasonable time after it acknowledges
that a request has been received, a request may, in my opinion, be considered to have been
constructively denied. In such a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part
that:

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing body,
who shall within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the reasons for
further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered
within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v.
McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

For your information, the person designated by the Department of Correctional Services to
determine appeals is Anthony J. Annucci, Counsel to the Department.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Superintendent, Upstate Correctional Facility