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FOIL-AO-13784

December 26, 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 in which you sought an opinion concerning a denial of access by
the City of Long Beach to records "concerning misconduct by members of the Long Beach Volunteer
Fire Department" who have been "found guilty and been assigned penalties in connection with their
misconduct." The City, according to your letter, has also withheld disciplinary records of two
dispatchers that it employs.

In this regard, I offer the following comments.

First, if the records are maintained by both the City of Long Beach and a volunteer fire
company, I believe that both entities would be required to comply with the Freedom of Information
Law. That statute is applicable to agency records, and §86(3) defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation, council,
office or other governmental entity performing a governmental or
proprietary function for the state or any one or more municipalities
thereof, except the judiciary or the state legislature."

As such, the Freedom of Information Law generally pertains to records maintained by entities of
state and local governments.

However, in Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], a case
involving access to records relating to a lottery conducted by a volunteer fire company, the Court of
Appeals, found that volunteer fire companies, despite their status as not-for-profit corporations, are
"agencies" subject to the Freedom of Information Law. In so holding, the Court stated that:

"We begin by rejecting respondent's contention that, in applying the
Freedom of Information Law, a distinction is to be made between a
volunteer organization on which a local government relies for
performance of an essential public service, as is true of the fire
department here, and on the other hand, an organic arm of
government, when that is the channel through which such services are
delivered. Key is the Legislature's own unmistakably broad
declaration that, '[a]s state and local government services increase and
public problems become more sophisticated and complex and
therefore harder to solve, and with the resultant increase in revenues
and expenditures, it is incumbent upon the state and its localities to
extend public accountability wherever and whenever feasible'
(emphasis added; Public Officers Law, §84).

"True, the Legislature, in separately delineating the powers and duties
of volunteer fire departments, for example, has nowhere included an
obligation comparable to that spelled out in the Freedom of
Information statute (see Village Law, art 10; see, also, 39 NY Jur,
Municipal Corporations, §§560-588). But, absent a provision
exempting volunteer fire departments from the reach of article 6-and
there is none-we attach no significance to the fact that these or other
particular agencies, regular or volunteer, are not expressly included.
For the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on goals as
broad as the achievement of a more informed electorate and a more
responsible and responsive officialdom. By their very nature such
objections cannot hope to be attained unless the measures taken to
bring them about permeate the body politic to a point where they
become the rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore merely
punctuates with explicitness what in any event is implicit" (id. at
579].

Moreover, although it was contended that documents concerning the lottery were not subject to the
Freedom of Information Law because they did not pertain to the performance of the company's fire
fighting duties, the Court held that the documents constituted "records" subject to the Freedom of
Information Law [see §86(4)].

In consideration of the legislative intent of the Freedom of Information Law to which the
Court of Appeals referred, as well as the direction provided by the Court, I believe that records
concerning volunteer firefighters should be accorded the same treatment for purposes of that statute
as records pertaining to public employees generally. Again, the Court emphasized that it is
"incumbent on the state and its localities to extend public accountability wherever and whenever
feasible", and in view of the relationship between the City and the volunteer fire department, there
is, in my opinion, an obligation on the part of both entities to disclose their records in a manner that
guarantees accountability.

Second, with respect to rights of access, 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. In my view, two of the grounds for denial would be
pertinent to an analysis of rights of access.

Section 87(2)(b) states that an agency may withhold records insofar as disclosure would
result in "an unwarranted invasion of personal privacy. Although the standard concerning privacy
is flexible and may be subject to conflicting interpretations, the courts have provided substantial
direction. It is clear that public employees enjoy a lesser degree of privacy than others, for it has
been found in various contexts that they, and given the decision rendered by the state's highest court,
volunteer firefighters as well, are required to be more accountable than others. Further, the courts
have found that, as a general rule, records that are relevant to the performance of a public employee's
official duties are available, for disclosure in such instances would result in a permissible rather than
an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS
2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978);
Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley
v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court
of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of
State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East
Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d
562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official
duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal
privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing,
Scaccia and Powhida, dealt with situations in which determinations indicating the imposition of
some sort of disciplinary action pertaining to particular public employees were found to be available.
However, when allegations or charges of misconduct have not yet been determined or did not result
in disciplinary action, the records relating to such allegations may, according to case law, be
withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald
Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)].

In short, if there was no determination to the effect that an employee or a volunteer firefighter
engaged in misconduct, I believe that a denial of access to the records based upon considerations of
privacy would be consistent with law.

The other provision of significance is §87(2)(g), which permits an agency to 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.

If there are final determinations indicating misconduct on the part of those who are the
subjects of your request, based on judicial determinations, such determinations would be accessible.
Again, however, when there is no finding of misconduct, I believe that records may justifiably be
withheld to protect personal privacy.

Further, although you suggested that personally identifying details could be deleted, I do not
believe that deletions would, under the circumstances, serve to protect privacy. Since you are aware
of the names of those involved, and since there are only seven persons, the deletion of names or other
identifiers would, in my view, be all but meaningless. That being so, insofar as the records pertain
to persons who were not found to have engaged in misconduct, the records, in my opinion, may be
withheld.

Lastly, I recognize that City officials sought to distinguish City employees from volunteer
firefighters in terms of protecting privacy. For reasons discussed earlier, I do not believe that such
a distinction can reasonably be made. Moreover, there are numerous instances in which persons
other than public employees are found to have engaged in some sort of violation, and in which the
record indicating the nature of the violation and the penalty is accessible to the public. If a licensee
has engaged in a violation and is fined or penalized, the record so indicating is public; records
indicating code and other violations are public. In short, when a government agency determines that
a violation has occurred and imposes a penalty, the record reflective of such a determination is
typically public.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm
cc: Harold Porr, III
Noreen O. Costello