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February 27, 2002

 

Mr. Harvey Elentuck
139-15 83 Avenue #326
Jamaica, NY 11435-1517

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 Mr. Elentuck:

I have received your memorandum of January 28 addressed to several persons, including myself.
As it pertains to me, you referred to a request for records that was denied by Thomas Liese, the
records access officer for the New York City Board of Education. You asked whether:

"...if Mr. Liese generically denied public access pursuant to FOIL
§87(2)(a), §87(2)(b}, and §87(2)(g) without having [your] FOIL
request in front of him, without really knowing what specific records
were requested, and without having examined each of the records
being requested, would that have been either a violation of FOIL or
the Committee's regulations?"

In this regard, first, this office never characterizes the actions of an agency or its personnel
as a "violation", for the Committee on Open Government has no authority to issue determinations.
Rather, as you are aware, the primary function of Committee involves providing advice and opinions
relating to the Freedom of Information Law.

Second, there may be instances in which there may be no need or obligation to examine or
become familiar with the specific contents of records prior to deciding to grant or deny access. For
instance, if a class of records is "specifically exempted from disclosure by state or federal statute"
and deniable under §87(2)(a) of the Freedom of Information Law, there would be no need in my
view to examine records. In such a case, the records would, in their entirety, be beyond the scope
of rights of access [see Short v. Board of Managers, 57 NY2d 399 (1982)]. Similarly, if a request
is made, for example, for a list persons having a certain characteristic, i.e., a list persons with a
certain disability, it is clear in my opinion that disclosure would constitute "an unwarranted invasion
of personal privacy" pursuant to §87(2)(b)", and examination of such a list would be unnecessary
in determining rights of access.

In other situations, however, those in which it is possible or likely that portions of records
may be both accessible and deniable, I believe that agency staff must review the records to determine
which portions may justifiably be withheld. In Gould v. New York City Police Department 87
NY2d 267 (1996)], the Court of Appeals stated that a categorical denial of access to records in a
circumstance of that kind is inconsistent with the requirements of the Freedom of Information Law.
In that case, the Police Department contended that "complaint follow up reports" could be withheld
in their entirety on the ground that they fall within the exception regarding intra-agency materials,
§87(2)(g), one of the exceptions cited in the denial of your request. The Court, however, wrote that:
"Petitioners contend that because the complaint follow-up reports contain factual data, the exemption
does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general
principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy
of open government" (id., 275).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Thomas Liese