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FOIL-AO-16088

July 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 in which you raised several issues concerning the implementation of the Freedom of Information Law by the New York City Department of Education.

You referred first to a determination of your appeal by a person other than the individual designated by the head of the agency to determine appeals. In this regard, as you are aware, §89(4)(a) of the Freedom of Information Law 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 of the entity, or the person therefor designated by such head, chief executive, or governing body..." Further, the regulations promulgated by the Committee on Open Government, 21 NYCRR §1401.7(a), similarly state that "The governing body of a public corporation or the head, chief executive or governing body of other agencies shall determine appeals or shall designate a person or body to hear appeals regarding denial of access to records..." Based on the foregoing, if a particular individual has been designated to determine appeals, I agree with your contention that he/she should sign any such determinations.

Second, you objected to a determination following an appeal which referenced an exception to rights of access different from that cited in the initial denial by the records access officer. In short, there is nothing in the law that binds the person designated to determine appeals to an exception or exceptions upon which a records access officer relied. In my view, therefore, there is nothing that precludes an appeals officer from relying upon provisions different from those cited by a records access officer.

Lastly, you objected to my opinion concerning the disclosure of public employees’ email addresses. My opinion remains the same, and I note that the Freedom of Information Law is permissive. While an agency may have the authority to deny access to records, it is not obliged to do so, and may choose to disclose. It is my understanding that some, but not all, email addresses of Department employees are accessible to the public. It does not follow that all such addresses must be disclosed. Further, the Department may have different levels of security associated with its employees and their electronic information systems.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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