October 28, 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.
I have received your letter and the materials attached to it. You have sought assistance in relation to a denial of your request for a complaint received by the Adirondack Park Agency "from a motel owner neighboring the Blue Lagoon Resort", which is apparently your property.
The denial of access was based on §87(2)(e)(iii) of the Freedom of Information Law, which authorizes a government agency to withhold "records compiled for law enforcement purposes and which, if disclosed, would....identify a confidential source or disclose confidential information relating to a criminal investigation..." It is your view that the complainant could not be characterized as a confidential source, that the matter does not pertain to criminal law enforcement, and that, therefore, the provision cited as the basis for the denial of access is inapplicable.
While I am in general agreement with your contention concerning the applicability of §87(2)(e)(iii), it appears that a different exception to rights of access may be pertinent.
By way of background, 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. I note that the introductory language of §87(2) refers to the ability to withhold "records or portions thereof" that fall within the grounds for denial that follow. The phrase quoted in the preceding sentence indicates that there may be instances in which a single record includes both accessible and deniable information, and that an agency is required to review a record that has been requested to determine which portions, if any, may properly be withheld.
The exception to rights of access of primary significance, in my view, pertains to the protection of privacy, and §87(2)(b) permits an agency to deny access to records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." It has generally been advised that those portions of a complaint or other record which identify complainants may be deleted on the ground that disclosure would result in an unwarranted invasion of personal privacy. I point out that §89(2)(b) states that an "agency may delete identifying details when it makes records available." Further, the same provision contains five examples of unwarranted invasions of personal privacy, the last two of which include:
"iv. 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; or
v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."
In my opinion, what is relevant to the work of the agency is the substance of the complaint, i.e., whether or not the complaint has merit. The identity of a member of the person who made the complaint is often irrelevant to the work of the agency, and in most circumstances, I believe that identifying details may be deleted.
If the identity of the complainant is known, the complaint might properly be withheld in its entirety if indeed, due to its contents, disclosure would constitute an unwarranted invasion of personal privacy. In that situation, for obvious reasons, the deletion of a name or other identifying details would not serve to protect privacy.
I hope that the foregoing serves to enhance your understanding of the Freedom of Information Law and that I have been of assistance.
Robert J. Freeman
cc: Brian M. Ford