March 29, 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.
We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information and the Personal Privacy Protection Laws to a request made to the State University of New York. Based on the materials you have provided, SUNY has denied access to a summary of a meeting regarding renewal of your employment with SUNY as a visiting professor. It is our opinion that SUNY’s responses to your requests are inconsistent with the Freedom of Information or the Personal Privacy Protection Laws. That being so, we offer the following comments.
First, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied..."
It is noted that new language was added to that provision on May 3 (Chapter 22, Laws of 2005) stating that:
"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."
Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. If it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, however, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.
The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon "the circumstances of the request." It is our perspective that every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure. As the Court of Appeals, the state’s highest court, has asserted:
"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].
In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:
"The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL"(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part 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, 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."
Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.
The records which you have submitted indicate that the timeliness of SUNY’s responses are not in keeping with the law. By refusing to interpret your January 31, 2006 letter in which you state "I am appealing Mr. Luntta’s determination" as an appeal of the denial of your request, we believe that SUNY failed to respond to your appeal. Regardless of whether you mentioned the Personal Privacy Protection Law in your initial request, upon receipt of written requests, SUNY is bound by statutory provisions contained within both the Freedom of Information and Personal Privacy Protection Laws. While we do not recommend that you take legal action, it is our opinion that you have a right to do so.
Further, it is our opinion that SUNY should make the summary available to you in its entirety, based on the following analysis:
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.
In consideration of the nature of the records sought, the provision of primary significance under that statute is §87(2)(g), which enables 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 our view be withheld pursuant to FOIL.
The response by the Department’s records access officer indicates that the records at issue were withheld in their entirety pursuant to §87(2)(g). In this regard, we point out that one of the contentions offered by the New York City Police Department in a decision rendered by the Court of Appeals was that certain reports could be withheld because they are not final and because they relate to incidents for which no final determination had been made. The Court of Appeals rejected that finding and stated that:
"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[g]). However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [Gould et al. v. New York City Police Department, 87 NY2d 267, 276 (1996)].
In short, that intra-agency material does not reflect a final agency policy or determination would not represent an end of an analysis of rights of access or an agency's obligation to review the contents of a record.
The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(I). In its consideration of the matter, the Court found that:
"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[g][I]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182) id., 276-277).]
In our view, insofar as the records at issue consist of recommendations, advice, opinions or constructive material, for example, they could be withheld under Freedom of Information Law; insofar as they consist of statistical or factual information, we believe that they must be disclosed, unless a separate exception is applicable.
Most importantly, since you requested records pertaining to yourself, however, the Personal Privacy Protection Law (Public Officers Law, Article 6-A) applies and the result would be different. The Freedom of Information Law deals with rights of access conferred upon the public generally; the Personal Privacy Protection Law deals with rights of access conferred upon an individual, a "data subject", to records pertaining to him or her. A "data subject" is "any natural person about whom personal information has been collected by an agency" [§92(3)]. "Personal information" is defined to mean "any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject" [§92(7)]. For purposes of the Personal Privacy Protection Law, the term "record" is defined 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" [§92(9)].
Rights conferred upon individuals by the Personal Privacy Protection Law are separate from those granted under the Freedom of Information Law. Under §95 of the Personal Privacy Protection Law, a data subject has the right to obtain from a state agency records pertaining to herself, unless the records sought fall within the scope of exceptions appearing in subdivisions (5), (6) or (7) of that section or §96, which would deal with the privacy of others. It is our opinion that because none of the exceptions would apply, the summary should have been made available to you.
Finally, it appears SUNY’s refusal to grant access to the summary is inconsistent with bylaws adopted by the Department of Theatre, College of Arts and Sciences, on May 6, 2004, which indicate that the Department will "follow procedures established by University regulations." Relevant Policies and Guidelines set forth in Administrative Procedures for the Preparation of Recommendations for Promotions and Continuing Appointment, indicate
"The summary of the departmental/school meeting must be prepared by a member of the teaching faculty or professional staff other than the department chair or dean and approved by the department/school as a whole. The summary should indicate the date on which the minute was approved. The summary must be a separate document in the file (i.e., reports of department/school personnel committees or recommendations from a department chair or dean are not satisfactory substitutes).
"The summary of discussion and the departmental/school vote must be given to the candidate before the case is forwarded to the next level of review."
As adopted by SUNY and the Department, these regulations appear to require SUNY to promulgate a summary of the discussion, separate from a record of the vote, and provide a copy to the professor who is the subject of review.
In our opinion, regardless of when the summary has been approved, it should be made available upon request to the subject of the review. In an effort to enhance understanding of and compliance with the law, a copy of this advisory opinion will be forwarded to Ms. Hengsterman and Mr. Luntta.
On behalf of the Committee on Open Government, we hope this is helpful to you.
Camille S. Jobin-Davis
cc: Stacey Hengsterman