March 26, 2007
FROM: Robert J. Freeman, Executive Director
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, unless otherwise indicated.
As you aware, I have received your letter in which you sought an advisory opinion relating to a matter that was considered in an earlier opinion.
The issue that you raised was precipitated by your review of an opinion rendered by this office prepared for an individual who submitted a request pursuant to the Freedom of Information Law to the Teachers’ Retirement System seeking a copy of a request made by a different person. In brief, it was advised that requests made under the Freedom of Information Law are themselves accessible, except in rare circumstances in which disclosure would constitute “an unwarranted invasion of personal privacy” [see Freedom of Information Law, §87(2)(b)]. Due to your familiarity with the situation, it is your belief that disclosure would indeed result in an unwarranted invasion of the privacy of the applicant for the record. The details that you offered need not be reiterated here, except to indicate your belief that disclosure of the applicant’s identity “would have an adverse impact....[on] his professional and economic capacities.”
During our discussion of the matter, you likened the situation to that more typically associated with complaints. In that regard, as you are aware, 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 (j) of the Law. I note that the introductory language of §87(2) refers to the ability to withhold “records or portions thereof” that fall within the grounds for denial that follow. The phrase quoted in the preceding sentence indicates that there may be instances in which a single record includes both accessible and deniable information, and that an agency is required to review a record that has been requested to determine which portions, if any, may properly be withheld.
In the context of questions involving access to complaints, it has generally been advised that those portions of a complaint or other record which identify complainants may be deleted on the ground that disclosure would result in an unwarranted invasion of personal privacy. I point out that §89(2)(b) states that an "agency may delete identifying details when it makes records available." Further, the same provision contains five examples of unwarranted invasions of personal privacy, one of which pertains to:
"disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it...” [§89(2)(b)(iv)].
If, based on the unique circumstances with which you are familiar, it is your view that disclosure of the identity of the applicant for records of the System would “result in economic or personal hardship”, a denial of access would appear to be appropriate. It is noted that when a person denied access by an agency seeks judicial review of the denial, the agency bears the burden of justifying its determination. Therefore, in such a challenge, the System would be required to demonstrate that disclosure would indeed result in the harmful effects of disclosure described in §89(2)(b(iv) in order to prevail.
I hope that I have been of assistance.