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February 29, 2001

FOIL-AO-12554

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 January 26, 2001 in which you sought my comments regarding
the disclosure of alcohol and drug test results pertaining to school bus drivers.

You enclosed a copy of a letter from the Warwick Valley Central School District Clerk which
denies your request for such test results. In her letter, the district clerk states that "pursuant to the
Federal Omnibus Transportation Employee Testing Act of 1991 and its implementing regulations
(34 C.F.R. Parts 382, 391) alcohol and drug testing records...are confidential and may only be
released to the employee and the employer and certain other parties" (such as the Department of
Transportation and the drug testing laboratory). This information "may not be released to other
parties without the employee's written consent."

Based on a review of the applicable statute and regulations, and consultation with officials
from the U.S. Department of Transportation, Federal Motor Carrier Safety Administration (the
agency responsible for administering the commercial motor vehicle drug and alcohol testing
program), it appears that the District is prohibited from releasing drug and alcohol test results of bus
drivers.

The Omnibus Transportation Employee Testing Act of 1991(OTETA) (P.L. 102-143, Title
V) amends the Commercial Motor Vehicle Safety Act of 1986 (P.L. 99-570, Title XII), and mandates
the promulgation of regulations requiring motor carriers to establish alcohol and drug testing
programs for commercial motor vehicle operators. School buses with a gross vehicle weight rating
of at least 26,001 lbs, or designed to transport at least 16 passengers, including the driver, are
considered "commercial motor vehicles" for the purpose of this statute (49 U.S.C. §31301(4)).
Under this Act (codified at 49 U.S.C. Chapter 313) and the implementing regulations (49 C.F.R. Part
382), school districts must establish and follow programs to test school bus drivers for use of alcohol
and illicit drugs.

49 U.S.C. 31306(c)(7) states that, in carrying out the alcohol and drug testing program, the
Secretary of Transportation shall:

"provide for the confidentiality of test results and medical
information (except information about alcohol or a controlled
substance) of employees, except that this clause does not prevent the
use of test results for the orderly imposition of appropriate sanctions
under this section."

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.
The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from
disclosure by state or federal statute." From my perspective, the passage quoted above serves to
exempt the information described therein from disclosure under the Freedom of Information Law
through the application of §87(2)(a).

In my view, a finding that records are confidential and cannot be disclosed must be consistent
with the specific and unequivocal language of a statute. In Capital Newspapers v. Burns, 67 NY2d
562, 567 (1986), the Court noted that there must be "a showing of clear legislative intent to establish
and preserve that confidentiality which one resisting a FOIL disclosure claims as protection" (id.).
Assuming that there is legislative history suggesting an intent to ensure confidentiality, I believe that
the information described in the provision in question would be "specifically exempted from
disclosure by...statute" and, therefore, beyond the scope of rights conferred by the Freedom of
Information Law.

It has been held by several courts, including the Court of Appeals, that an agency's
regulations 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 federal regulation cannot
confer, require or promise confidentiality. If an agency could, on its own initiative, adopt regulations
exempting records from disclosure in a manner inconsistent with a statute enacted by the State
Legislature (i.e., the Freedom of Information Law), the statute could be circumvented and its effect
nullified.

Again, 49 U.S.C, §31306(c)(7) states that the Department of Transportation shall "provide
for the confidentiality of test results and medical information (except information about alcohol or
a controlled substance)" except in specified circumstances. On its face, it is unclear whether the
parenthetical in the above-quoted provision is intended to apply to both "test results" and "medical
information," or only the latter. Michael Faulk, an attorney in the Office of Counsel at the Federal
Motor Carrier Safety Administration (FMCSA) explained that his agency interprets the parenthetical
to qualify only the term that immediately precedes it: "medical information." He indicated that the
parenthetical is designed to clarify that the confidentiality extended to the term "medical
information" should not be used to prohibit disclosure of alcohol and drug information to regulatory
authorities, but that test results are confidential in other circumstances. Further, News Alert, a
publication of the U.S. Department of Transportation, dated March 27, 1998, states that under 49
C.F.R. Part 382.405, "no information pertaining to a drug and/or alcohol test may be released,"
except as "authorized by the driver, required by the law, or the provisions of this section." Carolyn
Temperine, from the New York Division of the FMCSA believes that the underlined portion refers
to federal, state or local programs involving regulatory authority of employers or drivers. In short,
officials at the FMCSA interpret the federal statute provision as a prohibition regarding the
disclosure of test results.

In consideration of the OTETA, the implementing regulations and agency interpretation of
the Act, including the enclosed News Alert, the federal statute at issue appears to be intended to
ensure that alcohol and drug test results of school bus drivers are exempted from public disclosure.
If that is so, the law precludes a government official or agency from disclosing those records, except
to the individuals specified in the regulations, or upon consent of the bus driver. It is emphasized that
there is no judicial decision of which I am aware that focuses on the issue. While officials of the
FMCSA may be correct in their interpretation of the intent of the parenthetical phrase, arguably, that
phrase may have the opposite meaning.

If you would like to discuss the matter, please feel free to contact me.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Thomas Gustainis