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FOIL-AO-13755

December 9, 2002

 

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 and the materials attached to it. You wrote that you represent
WHEC TV-10 in Rochester, which has requested a transcript of a parole hearing held in 1993
pertaining to a former inmate, and that "[d]uring that hearing, certain names and information were
discussed in the full and open presence of the inmate." Although portions of the transcript were
disclosed, others were deleted. In explaining the basis for the deletion, Counsel to the Division of
Parole contended as follows: "[t]hat a discussion occurred upon the record before the inmate
regarding a position taken by the district attorney with respect to his possible release to parole
supervision does not prevent the Division from preserving the confidentiality attached to this
information." In support of his contention, Counsel relied upon and transmitted copies of advisory
opinions rendered by this office and judicial decisions consistent with those opinions (Rodriguez v.
Travis, Supreme Court, Albany County, November 17, 2000; Phillips v. Travis, Supreme Court,
Albany County, August 21, 2000).

From my perspective, Counsel's reliance on the precedents to which reference was made was
misplaced. In this regard, I offer the following comments.

First, 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.

Second, the opinions issued by this office and the judicial decisions cited all focused on
§87(2)(g) and communications between offices of district attorneys and the Division. In those
instances, as advised by this office and held by the courts, those records constitute "inter-agency
materials", and insofar as they consist of opinions, advice, recommendations and the like, they may
be withheld. However, the transcript indicates that the exchange involved a member of the Parole
Board, Commissioner King, and the inmate. Since the inmate is not in any way employed by or
associated with an agency, the exchange could not be characterized as "inter-agency or intra-agency
material", and 87(2)(g) would not serve as a basis for a denial of access. That exception, according
to the Court of Appeals, is intended to authorize a denial of access reflective of an "internal
government exchange" in the nature of "opinions, ideas, or advice exchanged as part of the
consultative or deliberative process of government decision making" [Gould v. NYC Police Dept.,
89 NY2d 267, 277 (1996)]. Again, since the communication involved a Commissioner and the
former inmate, it did not reflect an internal governmental communication, and the provision upon
which the Division appears to have relied is, in my view, inapplicable.

Third, while I do not know the contents of the deleted portions of the transcript, it appears
unlikely that there would be a basis for a denial. As you indicated, the inmate was a participant in
the exchange and, therefore, is aware of its content. The only basis for denial would appear to
involve the possibility that others, such as witnesses or informants who are not otherwise identified
in records of public proceedings, i.e., a trial, may be named. In that event, perhaps personally
identifying details could be deleted on the ground that disclosure would constitute "an unwarranted
invasion of personal privacy" [see Freedom of Information Law, §87(2)(b)] or endanger such a
person's safety [see §87(2)(f)]. In addition, the transcript relates to a hearing conducted in June of
1993, nearly ten years ago. The passage of time often diminishes or eliminates the potentially
harmful effects of disclosure envisioned by the exceptions to rights of access.

Lastly, the Court of Appeals expressed its general view of the intent of the Freedom of
Information Law in Gould v. New York City Police Department [89 NY2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions
are to be narrowly construed, with the burden resting on the agency
to demonstrate that the requested material indeed qualifies for
exemption' (Matter of Hanig v. State of New York Dept. of Motor
Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750
see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly
where the material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld' (Matter of
Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" (id., 275).

The Court also offered guidance to agencies and lower courts in determining rights of access and
referred to several decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must
articulate 'particularized and specific justification' for not disclosing
requested documents (Matter of Fink vl. Lefkowitz, supra, 47 N.Y.2d,
at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to
determine whether withheld documents fall entirely within the scope
of the asserted exemption, it should conduct an in camera inspection
of representative documents and order disclosure of all nonexempt,
appropriately redacted material (see, Matter of Xerox Corp. v. Town
of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74;
Matter of Farbman & Sons v. New York City Health & Hosps. Corp.,
supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm

cc: Terrence X. Tracy