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FOIL-AO-14264

September 24, 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 facts presented in your correspondence.

Dear

I have received your letter and the materials attached to it. You have sought an advisory opinion concerning the treatment and partial denial of your requests for records made to the Town of Hamburg. The records involve 911 calls made by you and your neighbors with whom you share a duplex residence and related materials prepared following those calls. The Town denied access to some of the records on the basis of §308(4) of the County Law.

A careful review of Article 6 of the County Law, which includes §308, indicates that §308 does not serve as a basis for a denial of access in this circumstance. That being so, I believe that the provisions of the Freedom of Information Law govern and must be used to determine rights of access, and conversely, the ability of the Town to deny access to the records sought.

Subdivision (4) of §308 states that:

"Records, in whatever form they may be kept, of calls made to a municipality's E911 system shall not be made available to or obtained by any entity or person, other than that municipality's public safety agency, another government agency or body, or a private entity or a person providing medical, ambulance or other emergency services, and shall not be utilized for any commercial purpose other than the provision of emergency services."

Although the term "municipality" most often would include a town, city or village, that is not so in this instance. Section 301 of the County Law contains a series of definitions for application in Article 6, and subdivision (1) defines "municipality" to mean "any county except a county wholly contained within a city and any city having a population of one million or more persons." That being so, §308(4) applies only to counties outside of New York City and does not apply to the Town.

Again, since §308 does not apply, the Freedom of Information Law governs rights of access. 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. As I understand the facts, two of the grounds for denial are potentially relevant.

Section 87(2)(b) states that an agency may withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Clearly you could not invade your own privacy. However, it is possible that disclosure of a tape recording or transcript of a 911 call made by a person other than yourself, or perhaps related records, might result in an unwarranted invasion of that person's privacy. To that extent, records may properly be withheld.

The other exception of significance pertains to communications between an employee of the agency in receipt of an emergency call and another public employee, i.e., a town police officer or a state trooper, both of whom would be "agency" employees. Specifically, §87(2)(g) authorizes 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. In my experience, the communications at issue typically consist of factual information (i.e., fire at 210 Main St.), or perhaps an instruction to staff that affects the public, both of which would be available unless a different exception applies, such as §87(2)(b) concerning unwarranted invasions of personal privacy. On occasion, the communications may also include opinions or recommendations ("I think that a person may be hurt"), which an agency may withhold.

Lastly, although some aspects of your request were denied, it does not appear that the Town informed you of the right to appeal the denial. Section 89(4)(a) confers a right to appeal upon a person denied access and states 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. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal when received by the agency and the ensuing determination thereon."

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 note, too, that if an appeal is not determined within ten business days as required by §89(4)(a), it has been held that the person denied access may consider the appeal to have been denied and may seek judicial review of the denial by initiating a proceeding under Article 78 of the Civil Practice Law and Rules [Floyd v. McGuire, 87 AD2d 388, appeal dismissed 57 NY 2d 774 (1982)].

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Town Board
Hon. Cathy Rybczynski
Robert C. Mueller