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July 24, 2001

FOIL-AO-12829

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 June 7, as well as the materials attached to it. You have sought
an opinion concerning requests made under the Freedom of Information Law.

In brief, you attempted to obtain a photograph of an Erie County Associate Medical
Examiner. The first request was made to the Erie County Medical Center, and in response, you were
informed that the request should be directed to the Office the Erie County Medical Examiner. In
response to that request, you were denied access under §5 of the Erie County Local Law that
implements the Freedom of Information Law. You indicated that you could not find that law and
expressed the belief that §677 of the County Law does not apply with respect to the record sought.

In this regard, by way of background, §89(1) of the Freedom of Information Law requires the
Committee on Open Government to promulgate general rules and regulations designed to implement
the procedural aspects of the Freedom of Information Law (see 21 NYCRR Part 1401). In turn,
§87(1) requires the head or governing body of each unit of government to adopt similar rules and
regulations consistent with the Freedom of Information Law and the regulations promulgated by the
Committee. I believe that the local law to which you referred was enacted in accordance with
§87(1). It is suggested that copies may be reviewed through either the Office of the County Attorney
or perhaps the County Executive.

It is emphasized that the Committee's regulations and the local law can deal only with the
procedural implementation of the Freedom of Information Law. Neither in my view may govern the
extent to which records may be withheld. Provisions dealing with the capacity of government
agencies in New York to deny access to records are found in §87(2) of the Freedom of Information
Law. In brief, that statute 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.

From my perspective, in consideration of the nature of the record sought, a photograph of a
public employee, only one of the grounds for denial would, under the circumstances, be pertinent.
Section 87(2)(b) authorizes an agency to withhold records insofar as disclosure would constitute "an
unwarranted invasion of personal privacy." In my opinion, there is nothing intimate or personal
about a photograph of a public employee that is used for purposes of identification. Particularly in
medical facilities, personnel often wear identification tags that include their photographs. That being
so, there is nothing secret or confidential, in my view, regarding the photograph of a public
employee.

The only instance in which it has been suggested that a photograph of a public employee
might be withheld would involve the rare circumstance in which a law enforcement employee is
involved undercover or similar work and disclosure would place that person in jeopardy. In that
case, I believe that a photograph could be withheld under §87(2)(f), which authorizes an agency to
deny access to records when disclosure would "endanger the life or safety of any person." I do not
believe, however, that §87(2)(f) would be applicable or pertinent in the context of your request.

Next, §677 of the County Law pertains to "[t]he writing made by the coroner, or by the
coroner and coroner's physician, or by the medical examiner, at the place where he takes charge of
the body", and reports of autopsy and related records. Section 677 in my opinion does not include
photographs of public employees taken for identification purposes within its coverage.

In sum, for the reasons discussed above, I believe that a photograph of an associate medical
examiner should be disclosed under the Freedom of Information Law.

Lastly, I note that the denial of your request makes no reference to your right to appeal the
denial. When a person is denied access to records, that person has the right to appeal. Section
89(4)(a) of the Freedom of Information Law 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
of the entity, or the person therefor designated by such 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."

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" (§1401.7).

It is 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)].

In short, an agency's records access officer has the duty individually, or in that person's role
of coordinating the response to a request, to inform a person denied access of the right to appeal as
well as the name and address of the person or body to whom an appeal may be directed.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Karen Biel-Costantino
County Attorney