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 FOIL-AO-14174

August 8, 2003

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 associated with it. You have sought advisory opinions concerning a variety of issues and questions raised relating to your request for records of the New York City Commission on Human Rights.

It is noted at the outset that in many of your questions, you asked whether the Commission engaged in "violations" of law. The Committee on Open Government does not have the authority to determine whether a violation was committed, and our statements and opinions do not refer to violations. In short, the Committee is authorized to render advisory opinions which are not binding in any way, and the remarks that follow should be considered in that light.

Rather than reiterating the facts as you presented them or answering each question specifically, I will attempt to focus on issues. In many of your questions, the issue involves the propriety of redactions, particularly the redaction of names of complainants. In this regard, I offer the following comments and observations.

First, 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. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

One of your questions relating to redactions involves whether the Commission is required to disclose copies of conciliation agreements "in fully unredacted form." Pertinent is §8-115 of the New York City Administrative Code, which states in subdivision (d) that:

"Every conciliation agreement shall be made public unless the complainant and respondent agree otherwise and the commission determines that disclosure is not required to further the purposes of this chapter."

From my perspective, there is no legal authority for conferring the ability to shield a conciliation agreement from the public upon the complainant, the respondent or the Commission. In a case in which a law enforcement agency permitted persons reporting incidents to indicate on a form their preference concerning the agency's disclosure of the incident to the news media, the Appellate Division found that, as a matter of law, the agency could not withhold the record based upon the "preference" of the person who reported the offense. Specifically, in Johnson Newspaper Corporation v. Call, Genesee County Sheriff, 115 AD 2d 335 (1985), it was found that:

"There is no question that the 'releasable copies' of reports of offenses prepared and maintained by the Genesee County Sheriff's office on the forms currently in use are governmental records under the provisions of the Freedom of Information Law (Public Officers Law art 6) subject, however, to the provisions establishing exemptions (see, Public Officers Law section 87[2]). We reject the contrary contention of respondents and declare that disclosure of a 'releasable copy' of an offense report may not be denied, as a matter of law, pursuant to Public Officers Law section 87(2)(b) as constituting an 'unwarranted invasion of personal privacy' solely because the person reporting the offense initials a box on the form indicating his preference that 'the incident not be released to the media, except for police investigative purposes or following arrest'."

Similarly, the Court of Appeals has held that a request for or a promise of confidentiality is all but meaningless; unless one or more of the grounds for denial appearing in the Freedom of Information Law may appropriately be asserted, the record sought must be made available [see Washington Post v. Insurance Department, 61 NY2d 557 (1984)].

I note, too, that it has been held by several courts, including the Court of Appeals, that an agency's regulations or the provisions of a local enactment, such as an administrative code, local law, charter or ordinance, for example, do not constitute a "statute" [see e.g., Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 Ad 2d 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)]. For purposes of the Freedom of Information Law, a statute would be an enactment of the State Legislature or Congress. Therefore, a local enactment cannot confer, require or promise confidentiality.

In short, it is not the Administrative Code or the desire or one or more parties or a promise or agreement conferring confidentiality that determines whether or the extent to which records must be disclosed or may be shielded; on the contrary, a statute, in this instance, the Freedom of Information Law, determines rights of access and the Commission's ability to deny access.

Next, despite your contentions, I believe that the name of a complainant may be withheld unless and until there is a finding of probable cause. If and when there is such a finding, it can be assumed that the names of the parties will be disclosed during a public proceeding. Before that point is reached, however, it is my view that disclosure of identifying details pertaining to a complainant, as well as the name of respondent who is a natural personal not involved in a business or professional activity, may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy. You sought to distinguish between situations in which a matter which is currently under investigation from the case in which the investigation has been concluded, suggesting that names must be disclosed in the latter situation. I see no difference in the nature of the disclosure or the magnitude of the invasion of privacy in the two situations. Again, until there is a finding of probable cause, I believe that personally identifying details may be redacted.

You also referred to the language of §89(2)(b)(iv), which provides that an unwarranted invasion of personal privacy includes "disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it." You contend, in your words, that the foregoing "requires both irrelevance and reporting in confidence to apply" (emphasis yours). Nevertheless, the introductory language of §89(2)(b) indicates that an unwarranted invasion of personal privacy "includes, but shall not be limited to" the examples that follow, one of which is subparagraph (iv). That being so, while the provision to which you referred may offer guidance, it merely serves as one example among conceivable dozens of instances in which disclosure might constitute an unwarranted invasion of personal privacy.

With respect to the redaction of the names of persons other than complainants or respondents, you contend that their identities should be disclosed, particularly when they are "acting in a business or professional capacity." As I interpret case law on the subject, the privacy exception does not apply to "business activities" [see Cohen v. Environmental Protection Agency, 575 F. Supp 425 (D.C.D.C. 1983) and ASPCA v Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989)]. I would conjecture that persons whose names appear in the records in question may often be analogous to witnesses or bystanders offering observations. I would agree that reference to those persons in relation to their business activities likely must be disclosed. In other instances, however, their identities may, in my view, be redacted to protect against unwarranted invasions of personal privacy.

Lastly, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. 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..."

Based on the foregoing, an agency must grant access to records, deny access or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date indicating when it can be anticipated that a request will be granted or denied.

I note that there is no precise time period within which an agency must grant or deny access to records. The time needed to do so may be dependent upon the volume of a request, the possibility that other requests have been made, the necessity to conduct legal research, the search and retrieval techniques used to locate the records and the like. In short, when an agency acknowledges the receipt of a request because more than five business days may be needed to grant or deny a request, so long as it provides an approximate date indicating when the request will be granted or denied, and that date is reasonable in view of the attendant circumstances, I believe that the agency would be acting in compliance with law.

A relatively recent judicial decision cited and confirmed the advice rendered by this office. In Linz v. The Police Department of the City of New York (Supreme Court, New York County, NYLJ, December 17, 2001), it was held that:

"In the absence of a specific statutory period, this Court concludes that respondents should be given a 'reasonable' period to comply with a FOIL request. The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, or if the acknowledgement of the receipt of a request fails to include an estimated date for granting or denying access, a request may, in my opinion, be considered to have been constructively denied [see DeCorse v. City of Buffalo, 239 AD2d 949, 950 (1997)]. 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)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Avery Mehlman