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 FOIL-AO-14584

April 6, 2004

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, unless otherwise indicated.

Dear

I have received your correspondence in which you requested an advisory opinion concerning an event, the death of the Reverend John A. Minkler, which, in your words, generated "recent - and extensive - local press coverage."

According to your letter:

"Reverend Minkler was found deceased in his apartment on or about February 16, 2004, together with a bottle of pills and certain documents, including an apparent suicide note, which were also present in the apartment. [Your] understanding is that, upon being called to the scene, the Watervliet Police Department took possession of these documents, including the suicide note. [Your] further understanding is that the documents (or copies thereof) have been forwarded to both the Albany County District Attorney’s office and the Albany County Coroner for their review in investigating the circumstances of Reverend Minkler’s death. Upon information and belief, the Albany County Coroner is waiting for the results of toxicology lab reports in order to determine the cause of Reverend Minkler’s death, which preliminary reports have indicated is a suicide."

Assuming the accuracy of the facts as you presented them, and assuming further that it is concluded that Reverend Minkler’s death "was a suicide and did not involve criminal activity", you have sought my opinion concerning public rights of access to the documents, particularly the suicide note. You noted that District Attorney Paul Clyne in a radio interview broadcast on February 24 stated, in your words, "that under no circumstances would his office release the suicide note...unless and until the note became evidentiary material used in a public proceeding." Other news reports indicate that if the suicide note is not used in a public proceeding, it will remain confidential unless the family of the deceased authorizes disclosure.

From my perspective, there are several issues relating to the matter. Although it is emphasized that I have no familiarity with or knowledge of the content of the materials at issue, I believe that they are subject to rights of access conferred by the Freedom of Information Law. This is not to suggest that they must be disclosed, but rather that an unequivocal or blanket denial of access by the District Attorney is inconsistent with the Freedom of Information Law and its judicial construction. In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to all records maintained by an agency, such as the office of a district attorney. Section 86(4) of that statute defines the term "record" expansively to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

In a case in which an agency claimed, in essence, that it could remove various documents from the coverage of the Freedom of Information Law, the Court of Appeals found that:

"...respondents' construction -- permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL -- would be inconsistent with the process set forth in the statute. In enacting FOIL, the Legislature devised a detailed system to insure that although FOIL's scope is broadly defined to include all governmental records, there is a means by which an agency may properly withhold from disclosure records found to be exempt (see, Public Officers Law §87[2]; §89[2],[3]. Thus, FOIL provides that a request for access may be denied by an agency in writing pursuant to Public Officers Law §89(3) to prevent an unwarranted invasion of privacy (see, Public Officers Law §89[2]) or for one of the other enumerated reasons for exemption (see, Public Officers Law §87[2]). A party seeking disclosure may challenge the agency's assertion of an exemption by appealing within the agency pursuant to Public Officers Law §89(4)(a). In the event that the denial of access is upheld on the internal appeal, the statute specifically authorizes a proceeding to obtain judicial review pursuant to CPLR article 78 (see, Public Officers Law §89[4][b]). Respondents' construction, if followed, would allow an agency to bypass this statutory process. An agency could simply remove documents which, in its opinion, were not within the scope of the FOIL, thereby obviating the need to articulate a specific exemption and avoiding review of its action. Thus, respondents' construction would render much of the statutory exemption and review procedure ineffective; to adopt this construction would be contrary to the accepted principle that a statute should be interpreted so as to give effect to all of its provisions...

"...as a practical matter, the procedure permitting an unreviewable prescreening of documents -- which respondents urge us to engraft on the statute -- could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate FOIL request. There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it 'purely private'. Such a construction, which could thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253-254 (1987)].

Based on the foregoing, it is clear in my opinion that the documents at issue, including the suicide note, constitute agency records subject to whatever rights of access may exist under the Freedom of Information law.

Second, 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.

The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, 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)" [87 NY2d 267, 275 (1996)].

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Department contended that certain records could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (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 v. 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.).

In the context of your inquiry, the District Attorney has merely indicated that the records will not be disclosed, unless they are used in a public proceeding. No basis for a denial of access among the grounds for denial appearing in §87(2) of the Freedom of Information Law has been cited.

In a similar vein, the Court of Appeals has held that a request for or a claim or 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. In Washington Post v. Insurance Department [61 NY2d 557 (1984)], the controversy involved a claim of confidentiality with respect to records prepared by corporate boards furnished voluntarily to a state agency. The Court of Appeals reversed a finding that the documents were not "records" subject to the Freedom of Information Law, thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Moreover, it was determined that:

"Respondent’s long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature’s definition of ‘records’ under FOIL. The definition does not exclude or make any reference to information labeled as ‘confidential’ by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt (see Matter of John P. v Whalen, 54 NY2d 89, 96; Matter of Fink v Lefkowitz, 47 NY2d 567, 571-572, supra; Church of Scientology v State of New York, 61 AD2d 942, 942-943, affd 46 NY2d 906; Matter of Belth v Insurance Dept., 95 Misc 2d 18, 19-20). Nor is it relevant that the documents originated outside the government...Such a factor is not mentioned or implied in the statutory definition of records or in the statement of purpose..."

The Court also concluded that "just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption" (id., 567).

In a different context, in Geneva Printing Co. and Donald C. Hadley v. Village of Lyons (Supreme Court, Wayne County, March 25, 1981), a public employee charged with misconduct and in the process of an arbitration hearing engaged in a settlement agreement with a municipality. One aspect of the settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding the agreement of confidentiality, which apparently was based on an assertion that "the public interest is benefited by maintaining harmonious relationships between government and its employees", the court found that no ground for denial could justifiably be cited to withhold the agreement. On the contrary, it was determined that:

"the citizen's right to know that public servants are held accountable when they abuse the public trust outweighs any advantage that would accrue to municipalities were they able to negotiate disciplinary matters with its employee with the power to suppress the terms of any settlement".

In so holding, the court cited a decision rendered by the Court of Appeals and stated that:

"In Board of Education v. Areman, (41 NY2d 527), the Court of Appeals in concluding that a provision in a collective bargaining agreement which bargained away the board of education' s right to inspect personnel files was unenforceable as contrary to statutes and public policy stated: 'Boards of education are but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public which they represent. (at p. 531).

"A similar restriction on the power of the representatives for the Village of Lyons to compromise the public right to inspect public records operates in this instance.

"The agreement to conceal the terms of this settlement is contrary to the FOIL unless there is a specific exemption from disclosure. Without one, the agreement is invalid insofar as restricting the right of the public to access."

It has also been held that the law, not the "preference" of persons in some way related to an event, serves as the means of determining public rights of access. 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'."

In this instance, while there may be sympathy for the family of the deceased, I do not believe that they, through the District Attorney, have the authority to block the disclosure of records or portions of records maintained by an agency.

Third, two of the grounds for denial of access are, in my view, pertinent to an analysis of rights of access.

Section 87(2)(e) permits an agency to withheld records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

It is questionable, in my opinion, whether the records at issue may be characterized as having been "compiled for law enforcement purposes." It has been held, for example, that minutes of meetings of municipal boards pertinent to or used in a criminal investigation were not "compiled" for a law enforcement purpose and were accessible under the Freedom of Information Law (see King v. Dillon, Sup. Ct., Nassau Cty., December 19, 1984). Frequently, contracts, books of account, travel records and the like may be pertinent to or used in a criminal investigation. Those kinds of records are generally available to the public, and in my opinion, they are not transformed into records compiled for law enforcement purposes that may be withheld if they become relevant to an investigation. Similarly, I do not believe that records prepared by members of the public, including suicide notes, can in every instance be considered to have been compiled for law enforcement purposes and, therefore, potentially deniable under §87(2)(e). Even if the records could properly be characterized as having been compiled for law enforcement purposes, it is questionable how or why disclosure would result in the harmful effects described in subparagraphs (i) through (iv) of §87(2)(e).

It is possible in some instances that those records or perhaps portions of them may be withheld pursuant to one or more of the remaining grounds for denial, and that may be so in relation to the instant situation, depending on the contents of the records.

Most significant in my opinion are §§87(2)(b) and 89(2), both of which authorize an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Essentially the same language is found in the federal Freedom of Information Act (5 USC §552) and other statutes in the United States concerning public access to government records. Although some have criticized that standard, contending that it is vague, I view it not as vague but rather as flexible. It enables agency officials as well as the courts to consider the specific contents of records, the facts, and the effects of disclosure in determining the extent to which records must be disclosed or may be withheld.

To suggest that every suicide note or the suicide note at issue and the other documents to which you referred, irrespective of their content, are beyond public rights of access fails to consider the specific terms of the Freedom of Information Law and the direction provided by the courts.

I note that there is little precedent concerning the privacy of the deceased extant in judicial decisions rendered under the Freedom of Information Law. Having discussed the matter with persons in New York and from other jurisdictions over the course of years, there is no clear or uniform view regarding the extent to which the privacy of the deceased may be protected. Some contend that when a person dies, the ability to assert either §§87(2)(b) or 89(2)(b) of the Freedom of Information Law no longer exists. Others have suggested that particular time limitations be used to draw a line of demarcation between the ability to withhold and the obligation to disclose records pertaining to the deceased. Some have offered that records pertaining to the deceased may be withheld when disclosure would disgrace the memory of the deceased or others who are living. In short, there is no universally accepted standard relative to records relating to deceased persons.

In my view, which I believe is consistent with the direction provided by the courts, records must be reviewed individually and in their entirety to consider their specific contents and the effects of disclosure. I do not believe that a blanket denial of access or rejection of a request without such a review would be proper.

If, for example, a suicide note merely states: "I killed myself because the world is a terrible place", there is nothing intimate or intensely personal in a statement of that nature. To the extent that a suicide note or similar document provides a statement of that nature, I do not believe that any of the grounds for denial of access could validly be asserted. If, however, the note states: "I killed myself because my mother never loved me and never will", it might be contended that disclosure would constitute an unwarranted invasion of personal privacy, not with respect to the deceased, but with respect to the mother. The records in this instance might consist of two sentences or several pages of material, and their content in my opinion must be considered and reviewed to determine whether or the extent to which they may justifiably be withheld.

There have been allegations that the suicide note or other records might include reference to Bishop Hubbard or others. Without knowing the contents of any such references, I cannot offer specific guidance. Nevertheless, it is possible that personally identifiable details or portions of records may be deleted to protect privacy, in which case the remainder may be available. Also, as you indicated, there has been a great deal of public interest in and extensive publicity concerning the death of Reverend Minkler, the Albany Diocese and Bishop Hubbard. In my view, as more information is made available and in the public domain, the more difficult it may become to demonstrate that disclosure would indeed result in an unwarranted invasion of personal privacy.

Lastly, I recognize that certain records maintained by the Coroner are accessible as of right pursuant to §677(3)(b) of the County Law only to a district attorney or the personal representative or next of kin of the deceased. In my view, however, the records of your interest fall beyond the coverage of §677. The introductory language of subdivision (1) of §677 refers to "[t]he writing made by the coroner..." While an autopsy report and records prepared by the Coroner may constitute such writings that need not be disclosed to the public, the writings prepared by the deceased or other members of the public in my opinion are not subject to the limitations imposed by §677 of the County Law. Rather, I believe that they are subject to rights of access conferred by the Freedom of Information Law.

In sum and to reiterate, the suggestion by the District Attorney that the records at issue are in their entirety exempt from disclosure is, in my view, inconsistent with law. The contents of the records, pertinent facts, and the effects of disclosure must be considered in my opinion to determine whether or the extent to which they may justifiably be withheld in accordance with the Freedom of Information law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Hon. Paul Clyne, District Attorney