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May 31, 2001

FOIL-AO-12690

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, unless otherwise indicated.

Dear

As you are aware, I have received a variety of correspondence and requests for my opinion
relative to your requests made under the Freedom of Information Law to the New York City
Departments of Buildings and Investigations.

It is my understanding that the requests were precipitated by your complaints and calls for
investigations concerning activities occurring at a property contiguous to your residence. It is also
my understanding that "investigations" or inquiries by City agencies generally resulted in the absence
of any particular action taken. For that reason, while it may be your belief that voluminous materials
may have been produced pertaining to your complaints, I have been led to believe that relatively few
records were produced. Although Ms. Elyse Hirschorn of the Department of Investigation indicated
that the records sought, insofar they exist, will be made available to you on June 4 to the extent
required by law, I offer the following comments in response to your contentions.

First, the Freedom of Information Law pertains to existing records, and §89(3) states in
relevant part that an agency need not create a record in response to a request. In a related vein, when
an agency indicates that it does not maintain or cannot locate a record, an applicant for the record
may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides
in part that, in such a situation, on request, an agency "shall certify that it does not have possession
of such record or that such record cannot be found after diligent search." If you consider it
worthwhile to do so, you could seek such a certification.

I point out that in Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was found that
a court could not validly accept conclusory allegations as a substitute for proof that an agency could
not locate a record after having made a "diligent search". However, in another decision, such an
allegation was found to be sufficient when "the employee who conducted the actual search for the
documents in question submitted an affidavit which provided an adequate basis upon which to
conclude that a 'diligent search' for the documents had been made" [Thomas v. Records Access
Officer, 613 NYS 2d 929, 205 AD 2d 786 (1994)].

In consideration of several of the responses to your requests, I point out that it has been held
that if records were previously disclosed to you, an agency is not required to make the same records
available a second time, unless it can be demonstrated that neither the applicant nor his or
representative (i.e., that person's attorney) any longer has possession of the records [see Moore v.
Santucci, 151 AD2d 677 (1989)].

Second, the Freedom of Information Law provides direction concerning the time and manner
in which agencies must respond to requests and appeals. 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)].

Further, the regulations promulgated by the Committee on Open Government (21 NYCRR
Part 1401), which govern the procedural aspects of the Law, state that:

"(a) The governing body of a public corporation or the head, chief
executive or governing body of other agencies shall hear appeals or
shall designate a person or body to hear appeals regarding denial of
access to records under the Freedom of Information Law.

(b) Denial of access shall be in writing stating the reason therefor
and advising the person denied access of his or her right to appeal to
the person or body established to hear appeals, and that person or
body shall be identified by name, title, business address and business
telephone number. The records access officer shall not be the appeals
officer" (section 1401.7).

It is also noted that the state's highest court has held that a failure to inform a person denied
access to records of the right to appeal enables that person to seek judicial review of a denial. Citing
the Committee's regulations and the Freedom of Information Law, the Court of Appeals in Barrett
v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to advise petitioner of the
availability of an administrative appeal in the office (see, 21 NYCRR
1401.7[b]) and failed to demonstrate in the proceeding that the
procedures for such an appeal had, in fact, even been established (see,
Public Officers Law [section] 87[1][b], he cannot be heard to
complain that petitioner failed to exhaust his administrative remedies"
[74 NY 2d 907, 909 (1989)].

You expressed the view that an agency must inform a person denied access to records of the
"existence and address of the Committee on Open Government" and that an agency that fails to
indicate grounds for denial in response to requests and appeals "must be considered to have
forfeited" its capacity to assert grounds for denial in ensuing proceedings. While agencies are
required by §89(4)(a) to send copies of appeals and their determinations thereon to the Committee,
there is nothing in the law that requires that they provide information pertaining to the Committee
to a person seeking records.

I point out, too, that the lower court in Floyd, supra, determined that the records should have
been disclosed by virtue of the agency's failure to respond, but that the Appellate Division modified
that aspect of the decision. Although the Appellate Division confirmed that a failure to respond to
an appeal within the statutory time constitutes a constructive denial of access, thereby resulting in
the exhaustion of one's administrative remedies and the right to initiate an Article 78 proceeding, it
was also found that such failure did not automatically require that the agency disclose the requested
records. Specifically, in rejecting the Supreme Court's automatic grant of access, the Appellate
Division found that:

"We think this is too rigid an interpretation of the statute. As a
textual matter, if the effect of failure to comply were as Special Term
interpreted it, it would have been more appropriate for the statute to
say that if (A) the agency did not furnish the explanation in writing
then (B) the agency must provide access to the material sought.
Instead, however, the statute is phrased in the alternative form of
requiring the agency within seven days to do either (A) or (B). As a
textual matter there would appear to be no particular reason to say
that failure to do either (A) or (B) would require the agency to do (B)
rather than (A), which is the choice Special Term made.

"More important, as a policy matter, we do not think the statute
should be interpreted so rigidly to require the result directed by
Special Term. We recognize the importance of prompt response by
the agency to the request for information. Such responsiveness and
accountability are the very point of FOIL. But the same statute also
expresses the public policy that some kinds of material should be
exempt from disclosure. Both policies must be considered. To say
that even the slightest default in timely explanation destroys the
exemption seems to us too draconian. We think the seven-day
limitation should be read as directory rather than mandatory, and that
the consequence of failure by the agency to comply with the seven-
day limitation is that the applicant will be deemed to have exhausted
his administrative remedies and will be entitled to seek his judicial
remedy" (id., 87 AD 2d 388, 390).

I note that at the time of the decision, the statutory time for responding to an appeal was seven days;
it is now ten business days.

You added that "[a] lawyer who represents himself in an action in court against a FOIL-
subjected agency and prevails, is entitled....a. to court costs, and b. to other damages, particularly
where the agency has intentionally violated FOIL." The provision dealing with reimbursement in
a litigation context, §89(4)(c), states that:

"The court in such a proceeding may assess, against such agency
involved, reasonable attorney's fees and other litigation costs
reasonably incurred by such person in any case under the provisions
of this section in which such person has substantially prevailed,
provided, that such attorney's fees and litigation costs may be
recovered only where the court finds that:

i. the record involved was, in fact, of clearly significant interest to the
general public; and

ii. the agency lacked a reasonable basis in law for withholding the
record."

Based on the foregoing, reimbursement is limited to court costs and attorney's fees, and any such
award may be conferred only when each of three conditions is met: that the person denied access has
substantially prevailed, that the agency had no reasonable basis for denying access, and that the
records are of clearly significant interest to the general public. There is no mention of damages in
the Freedom of Information Law.

Third, I am unfamiliar with the contents of existing records falling within the scope of your
request. However, 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.

Portions of the records sought are apparently being made available under §87(2)(g). That
provision potentially serves as a basis for a denial of access. Nevertheless, due to its structure, it may
require disclosure of certain aspects of records. The cited provision 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 ground for denial could
appropriately be asserted. 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.

Among the records sought are investigative policies and procedures. Those kinds of records
would, in my view, constitute intra-agency materials that must be disclosed under subparagraph (iii)
of §87(2)(g), unless a different ground for denial applies. Pertinent in this regard 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, 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.

Another ground for denial of possible relevance 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 deniable, others must in my
opinion be disclosed in conjunction with the preceding commentary.

I hope that the foregoing serves to clarify your understanding of the Freedom of Information
Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Felicia R. Miller
Elyse G. Hirschorn