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FOIL-AO-16407

 

January 17, 2007

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 requested an advisory opinion concerning the obligation of the Office of the State Comptroller disclose certain information contained within the agency’s audit work papers pursuant to the Freedom of Information Law.

You wrote that, during the course of auditing a school district, it was learned that the district issued laptop computers to three members of the board of education and seven employees, and that those computers “had been used extensively for personal purposes”, including “accessing pornographic websites.” You asked whether, in my view, you would be required to disclose “(1) the names of the persons to whom the computers were issued, and (2) a list of the personal purposes for which the computer issued to each person was used, including the names of the persons to whom computers were issued on which [you] found pornography.”

You indicated that the laptop computers were not password protected, and that your staff did not attempt to identify the individuals who in fact used them inappropriately. Further, although the district adopted a policy that prohibits the use of the computers to access pornographic sites, it “did not clearly prohibit the use of the computers for personal purposes”, nor did the policy clearly apply to members of the board of education.

Because the information at issue is purely factual in nature and does not identify or allege that any particular individual engaged in the inappropriate use of a computer, I believe that it is accessible under the Freedom of Information Law. In this regard, I offer the following comments.

First, the Freedom of Information Law is expansive in its scope, for it pertains to all agency records and defines the term “record” in §86(4) 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, the documentary materials that you described in my opinion clearly constitute “records” that fall within the framework of the Freedom of Information Law.

Second, as you are aware, that statute 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 (j) of the Law. From my perspective, two of the grounds for denial of access are pertinent to an analysis of rights of access. Neither, however, could in my opinion justifiably be asserted as a means of denying access.

One of the exceptions to rights of access, 87(2)(g), pertains to internal governmental communications, but due to its structure, it may require disclosure. Specifically, that provision states that an agency may 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.

In a decision rendered by the Court of Appeals in which the Court dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i), it was determined 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[2][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)” [Gould et al. v. New York City Police Department, 87 NY2d 267, 276-277 (1996)].

It is also noted that it was held by the Appellate Division more than twenty-five years ago that statistical or factual information contained within audit work papers are accessible [see Polansky v. Regan, 81 AD2d 102 (1981)].

As I understand the nature of the information in question, all of it is factual. It is a fact that laptop computers were issued to certain board members and district employees. It also a fact that the computers were used to access pornographic websites. It is reiterated that the work papers do not include any allegation that any particular individual engaged in inappropriate use of a computer.

The other exception of significance is §87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” In addition, §89(2)(b) provides a series of examples of unwarranted invasions of personal privacy.

While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers and employees. It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those persons are required to be more accountable than others. With regard to records relating to them, the courts have found that, as a general rule, records that are relevant to their duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, supra; Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to their duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

In the context of the situation that you presented, in my opinion, it is clear that the identities of those to whom computers were issued relates to the performance of those persons’ functions and duties as officers or employees of a government agency. They would not have gained the use of the computers but for their roles as board members or employees of the district. I note that it has been advised in many instances that the identities of public officers or employees to whom vehicles are assigned, to whom government credit cards have been given, or who have the use of government owned cell phones are accessible to the public, for disclosure of portions of records containing those facts would, if disclosed, in our view, result in a permissible, not an unwarranted invasion of personal privacy.

With respect to the “personal purposes for which the computer issued to each person was used,” again, there is no specification or indication in the records of the identity of the person or persons who may have engaged in inappropriate use of the computers. That being so, I do not believe that it could justifiably be contended that disclosure would constitute an unwarranted invasion of the privacy of any specific person. From my perspective, even though computers were assigned for use by named board members or employees, the information at issue pertains to the use of the computers, not to their use by any particular person.

Lastly, in its consideration of the intent and utility of the Freedom of Information Law, the Court of Appeals has recognized and confirmed that the public has the right to obtain records in the nature of those at issue, finding that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" [Capital Newspapers v. Burns, 67 NY2d 562, 565-566 (1986)].

Based on the preceding analysis, I believe that the items at issue must be disclosed in response to a request made under the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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