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March 20, 2001

FOIL-AO-12592

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 of February 6 and the letter attached to it addressed to the
Municipal Service Division of the Department of Civil Service. You described a series of events
relating to your efforts to obtain a position with Nassau County.

In this regard, the Committee on Open Government, a unit of the Department of State, is
authorized to offer advice and opinions concerning public access to government records under the
State's Freedom of Information and Personal Privacy Protection Laws. I note that the former applies
to entities of state and local government; the latter applies only to state agencies. As I understand
your comments, you have attempted without success to obtain "the results of the deposition" relating
to your complaint to the Division of Human Rights, and the case file concerning the matter. In an
effort to provide guidance, I offer the following comments.

First, the Freedom of Information Law, which deals with all agency records, 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)].

Second, since the records of your interest would appear to be maintained by the Division of
Human Rights, the Personal Privacy Protection Law is pertinent to an analysis of rights of access.
In general, that statute requires that state agencies disclose records about data subjects to those
persons. A "data subject" is "any natural person about whom personal information has been
collected by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal information" is
defined to mean "any information concerning a data subject which, because of name, number,
symbol, mark or other identifier, can be used to identify that data subject" [§92(7)]. For purposes
of the Personal Privacy Protection Law, the term "record" is defined to mean "any item, collection
or grouping of personal information about a data subject which is maintained and is retrievable by
use of the name or other identifier of the data subject" [§92(9)].

Under §95 of the Personal Privacy Protection Law, a data subject, a person such as yourself
in the context of your request, has the right to obtain from a state agency records pertaining to him
or her, unless the records sought fall within the scope of exceptions appearing in subdivisions (5),
(6) or (7) of that section or §96, which would deal with the privacy of others.

Of potential relevance to the matter is subdivision (6)(d) of §95, which states that rights of
access by a data subject to not extend to:

"attorney's work product or material prepared for litigation before
judicial, quasi-judicial or administrative tribunals, as described in
subdivision (c) and (d) of section three thousand one hundred one of
the civil practice law and rules, except pursuant to statute, subpoena,
search warrant or other court ordered disclosure."

The references to the work product of an attorney and material prepared for litigation are based on
subdivisions (c) and (d) §3101 of the Civil Practice Law and Rules.

While I am unaware of the specific nature of the records sought, §3101 pertains disclosure
in a context related to litigation, and subdivision (a) reflects the general principle that "[t]here shall
be full disclosure of all matter material and necessary in the prosecution or defense of an action..."
The Advisory Committee Notes pertaining to §3101 state that the intent is "to facilitate disclosure
before trial of the facts bearing on a case while limiting the possibilities of abuse." The prevention
of "abuse" is considered in the remaining provisions of §3101, which describe narrow limitations
on disclosure. It is also noted that it has been determined judicially that if records are prepared for
multiple purposes, one of which includes eventual use in litigation, §3101(d) does not serve as a
basis for withholding records; only when records are prepared solely for litigation can §3101(d) be
properly asserted to deny access to records [see e.g., Westchester-Rockland Newspapers v.
Mosczydlowski, 58 AD 2d 234 (1977)].

As suggested earlier, as a "data subject", I believe that you generally enjoy rights of access
to records about yourself. However, insofar as the records pertain to or identify others, there may
be privacy considerations applicable to them. To the extent that the records identify others, §96(1)
of the Personal Privacy Protection Law states that "No agency may disclose any record or personal
information", except in conjunction with a series of exceptions that follow. One of those exceptions,
§96(1)(c), involves a case in which a record is "subject to article six of this chapter [the Freedom of
Information Law], unless disclosure of such information would constitute an unwarranted invasion
of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this
chapter". Section 89(2-a) of the Freedom of Information Law states that "Nothing in this article shall
permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in
subdivision two of this section if such disclosure is prohibited under section ninety-six of this
chapter". Consequently, if a state agency cannot disclose records pursuant to §96 of the Personal
Protection Law, it is precluded from disclosing under the Freedom of Information Law; alternatively,
if disclosure of a record would not constitute an unwarranted invasion of personal privacy and if the
record is available under the Freedom of Information Law, it may be disclosed under §96(1)(c).

Again, I am unaware of the contents of the records your interest. However, in conjunction
with the preceding commentary, I believe that they may be withheld to the extent that they identify
persons other than yourself and disclosure would result in an unwarranted invasion of their privacy.
In addition, I believe that they may be withheld in accordance with the principles set forth in §3101
of the Civil Practice Law and Rules. The remaining aspects of the records pertaining you would, in
my view, appear to be accessible to you from the Division of Human Rights.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt
cc: Records Access Officer, Division of Human Rights