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FOIL-AO-15846

February 28, 2006

 

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 concerning records maintained by the State Department of Health pertaining to you.

You referred to a request relating to complaints and an investigation that followed pertaining to you and another individual "regarding sending anonymous e-mails to the Town of Colonie" that led to your suspension as a paramedic and the other individual’s termination. You wrote that the "‘investigation’ appears to exonerate" you, and that you have been seeking "any and all documents pertaining to this investigation." You added that the "privilege" asserted by the Department "shouldn’t" exist "because a number of the documents claiming to be inter or intra-agency were obviously completed by Mr. Politis on a Personal E-mail account and not a Town of Colonie Business account in an official capacity.

You have sought my "personal intervention" in an effort to persuade the Department to disclose the records.

In this regard, it is noted at the outset that neither the Committee on Open Government nor its staff is authorized to "intervene" as that term is used in a legal sense. We are authorized to prepare advisory opinions, and this response, a copy of which will be forwarded to the Department, should be considered advisory.

First, it appears that two statutes, the Freedom of Information Law and the Personal Privacy Protection Law, are relevent in analyzing rights of access. The latter, which applies only to state agencies, pertains to records relating to a "data subject", a phrase defined in §92(1) of that statute to mean "any natural person about whom personal information has been collected by an agency." The term "record" for purposes of the Personal Privacy Protection Law is defined in §92(9) to mean "any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject.

In general, §95(1) of the Personal Privacy Protection Law grants rights of access to a data subject to records pertaining to that person, unless an exception to rights of access applies. While I am unfamiliar with the contents of the records sought or the powers of the Department of Health relative to the matter, several of the exceptions might be applicable; the extent to which they would apply is unknown to me.

One exception, §95(5)(a), states that records "compiled for law enforcement purposes may be withheld insofar as disclosure 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."

Even if the records were "compiled for law enforcement purposes", based on the information that you provided, it would appear that the only potential exception would involve subparagraph (iii) concerning the identification of a confidential source. In my view, if, for example, the record at issue identifies Town officers or employees who communicated with the Department in their capacities as Town officials, §95(a)(iii) would not apply. In these instances, they would have communicated in a professional, not a personal capacity.

Similarly, although you could not invade your own privacy, insofar as records pertaining to you identify others, it is possible that identifying details pertaining to those persons may be withheld under §96(1) of the Personal Privacy Protection Law and §89(2)(a) of the Freedom of Information Law on the ground that disclosure would constitute and unwarranted invasion of personal privacy relative to those persons. However, when a public officer or employee is acting in the performance of his or her governmental duties, there would be nothing "personal" about his or her activities, and I do not believe that the provisions concerning the protection of personal privacy may be asserted in those circumstances.

Also relevant may be §95(6)(d), which states that rights conferred by the Personal Privacy Protection Law do not apply to:

"attorney's work product or material prepared for litigation before judicial, quasi-judicial or administrative tribunals, as described in subdivisions (c) and (d) of section three thousand one hundred one of the civil practice law and rules, except pursuant to statute, subpoena issued in the course of a criminal action or proceeding, court ordered or grand jury subpoena, search warrant or other court ordered disclosure."

The provision quoted above might be pertinent if the records sought were prepared for use in a quasi-judicial or administrative proceeding.

The remaining exception of possible significance, §95(7) exempts "public safety agency records" from rights of access conferred upon data subjects by the Personal Privacy Protection Law. According to §92(8), a "public safety agency record" means a record "of any agency or component thereof whose primary function is the enforcement of civil or criminal statutes if such record pertains to investigation [or] law enforcement." Whether any of the records at issue constitute "public safety agency record" is unknown to me.

In sum, insofar as the exceptions to §95 cited above apply, you would not enjoy rights of access under the Personal Privacy Protection Law. To the extent that the exceptions are inapplicable, however, I believe that the Department would be required to disclose records pertaining to you pursuant to a request made under the Personal Privacy Protection Law.

Even when the exceptions to rights of access in the Personal Privacy Protection Law apply, the Freedom of Information Law would nonetheless apply. That statute pertains to all agency records. For purposes of that law, §86(4) defines the term "record" to include:

"...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."

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.

The Freedom of Information Law contains exceptions somewhat analogous to those in the Personal Privacy Protection Law. Sections 87(2)(e) pertains to records compiled for law enforcement purposes, which may be withheld on the same basis as §95(5)(a) of the Personal Privacy Protection Law. Sections 87(2)(b) and 89(2)(b) pertain to unwarranted invasions of privacy relative to persons other than yourself. Section 87(2)(a) deals with records that "are specifically exempted from disclosure by state or federal statute, such as §3101(c) of the Civil Practice Law and Rules concerning the work product of an attorney.

When the Personal Privacy Protection Law applies, it contains no exception to rights of access comparable or analogous to §87(2)(g) of the Freedom of Information Law. That provision 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.

If, for example, an employee of the Town transmitted a record pertaining to you reflective of his or her opinion, the opinion may be withheld, but only if the Freedom of Information Law governs rights of access. If the Personal Privacy Protection Law applies (because none of the exceptions appearing in §95 of that law would apply), that same record would be available to you.

Lastly, that an e-mail may have been transmitted from a person’s home computer to a state agency would not necessarily indicate that the communication is not "inter-agency material." Again, the Freedom of Information Law defines the term "record" to include information in any physical form kept, held, filed, produced or reproduced by or for an agency. If a Town official acting in his capacity as a Town official transmitted a record to an agency or received a record from an agency, I believe that such records would constitute "inter-agency materials." It is reiterated, however, that if such records pertain to you, and if none of the exceptions appearing in §95 of the Personal Privacy Protection Law may be asserted, in my opinion, they must be made available to you.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Valerie A. Weaver