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FOIL-AO-15058

December 21, 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.

Dear

I have received your letter in which you referred to two letters forwarded to you by the Sullivan County Real Property Tax Director, Mr. Paul J. Burkard, in which he was advised by two state agencies that certain information in his possession should not be disclosed to the public.

One letter was sent to Mr. Burkard by the Office of Cyber Security and Critical Infrastructure Coordination (CSCIC) concerning the delivery "copies of orthoimagery", and with it was the following admonition:

"Also included in this delivery is a list of the ‘sensitive’ images and graphic files showing their location. These may NOT be shared with the general public.

"As noted in our original delivery letter dated August 2, 2002, the full resolution imagery includes files deemed sensitive by (OHS). These full resolution sensitive images were provided only for the internal use of Sullivan County, contractors acting on behalf of the County, and municipalities within Sullivan County. These sensitive tiles are not to be distributed or displayed to the public. Any requests to distribute or display the full resolution sensitive images should be referred to CSCIC."

The other letter was addressed to Mr. Burkard by the Office for Technology concerning CD’s sent to the County that include digital orthoimagery. The letter states that:

"The enclosed ‘Support CD’ includes a list of all imagery tiles containing sensitive information as defined by the New York State Office for Public Security. Due to current public security concerns, we request that Sullivan County limit distribution of this sensitive imagery to only county and municipal entities within the county. Please refer requests by all others to OFT. In addition, please notify all entities receiving this imagery of the requirements for restricted distribution."

You wrote that it had been your belief that the images in question could be withheld if they were maintained by the County Sheriff’s Department, but that you are unaware of any exception to rights of access that might be asserted when the records are maintained by the Real Property Tax Office.

From my perspective, the content of the records and the effects of their disclosure, not the unit of County government that maintains them, serve as the key factors in determining whether or the extent to which they may be withheld. In this regard, I offer the following comments.

First, as you are aware, the Freedom of Information Law pertains to agency records, and §86(4) 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."

Based on the foregoing, I believe that the images sent to Sullivan County by state agencies constitute County records that fall within the coverage of the Freedom of Information Law. That being so, the County, in my view, would be required to respond to a request for those records in a manner consistent with that statute. I do not believe that the County would be required to refer any such request to another agency.

Second, while the County may consult with or seek guidance from a state agency or others in attempting to determine public rights of access to records, a state agency may not, in my opinion, prohibit the County from disclosing the records at issue or restrict the dissemination of those records.

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.

Section 87(2)(a) pertains to records that "are specifically exempted from disclosure by state or federal statute." The term "statute", according to judicial decisions, is an enactment of Congress or the State Legislature. If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v. BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. In the context of the situation that you described, I know of no statute that would exempt the records from disclosure.

There is nothing in the Freedom of Information Law that authorizes a person or agency to impose, claim, promise or engage in an agreement conferring confidentiality. 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. In Washington Post v. Insurance Department, supra, 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" (id., 564). 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 short, based on the language of the Freedom of Information Law and the judicial precedents cited above, I do not believe that the records in question may be characterized as exempt from disclosure by statute or that a state agency may require that the County prohibit disclosure to the public.

The foregoing is not intended to suggest that the records must disclosed, for it is possible that an exception might justify a denial of access by the County to certain records or perhaps portions of records. If indeed security is a valid concern, most pertinent in my opinion is §87(2)(f), which was recently amended. By way of background, that provision had since 1978 authorized an agency to withhold records or portions thereof which if disclosed "would endanger the life or safety of any person." Although an agency has the burden of defending secrecy and demonstrating that records that have been withheld clearly fall within the scope of one or more of the grounds for denial [see §89(4)(b)], in the case of the assertion of that provision, the standard developed by the courts was somewhat less stringent. In citing §87(2)(f), it was found that:

"This provision of the statute permits nondisclosure of information if it would pose a danger to the life or safety of any person. We reject petitioner’s assertion that respondents are required to prove that a danger to a person’s life or safety will occur if the information is made public (see, Matter of Nalo v. Sullivan, 125 AD2d 311, 312, lv denied 69 NY2d 612). Rather, there need only be a possibility that such information would endanger the lives or safety of individuals...."[emphasis mine; Stronza v. Hoke, 148 AD2d 900,901 (1989)].

The principle enunciated in Stronza appeared in several other decisions [see Ruberti, Girvin & Ferlazzo v. NYS Division of the State Police, 641 NYS 2d 411, 218 AD2d 494 (1996), Connolly v. New York Guard, 572 NYS 2d 443, 175 AD 2d 372 (1991), Fournier v. Fisk, 83 AD2d 979 (1981) and McDermott v. Lippman, Supreme Court, New York County, NYLJ, January 4, 1994], and it was determined in American Broadcasting Companies, Inc. v. Siebert that when disclosure would "expose applicants and their families to danger to life or safety", §87(2)(f) may properly be asserted [442 NYS2d 855, 859 (1981)]. Also notable is the holding by the Appellate Division in Flowers v. Sullivan [149 AD2d 287, 545 NYS2d 289 (1989)] in which it was held that "the information sought to be disclosed, namely, specifications and other data relating to the electrical and security transmission systems of Sing Sing Correctional Facility, falls within one of the exceptions" (id., 295). In citing §87(2)(f), the Court stated that:

"It seems clear that disclosure of details regarding the electrical, security and transmission systems of Sing Sing Correctional Facility might impair the effectiveness of these systems and compromise the safe and successful operation of the prison. These risks are magnified when we consider the fact that disclosure is sought by inmates. Suppression of the documentation sought by the petitioners, to the extent that it exists, was, therefore, consonant with the statutory exemption which shelters from disclosure information which could endanger the life or safety of another" (id.).

In sum, although §87(2)(f) referred to disclosure that would endanger life or safety, the courts clearly indicated that "would" meant "could."

Recently the Legislature acted to change the word "would" to "could" (Ch. 403, Laws of 2003). Therefore, when there is a reasonable likelihood that disclosure could endanger life or safety, I believe that the County may deny access, whether the records are kept by a law enforcement agency or any other unit within County government.

Lastly, as indicated earlier, when an agency’s denial of access is challenged in court, §89(4)(b) specifies that the agency has the burden of defending secrecy. In this regard, 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 [89 NY2d 267 (1996)], 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)" (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.).

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
RJF:jm
cc: Paul J. Burkard
Tim Ruhren
R. Bruce Oswald