May 17, 2007
FROM: Camille S. Jobin-Davis, Assistant 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.
We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a “private, not-for-profit agency”. Specifically, you described a “local prevention council”, “that receives the majority of its funds” from the New York State Office of Alcoholism and Substance Abuse Services. You questioned whether the public may gain access to survey results if the local prevention council administers a “confidential” survey. In our view, the results may be required to be made available in part, and we offer the following comments.
It appears that the entity to which you refer is a drug abuse prevention council (a “council”) created by a county, city, town, village or community board, based on General Municipal Law §239-u. Specifically, “[s]uch council shall consist of not less than three nor more than seven members who shall be appointed by the local legislative body or community board ...” (GML §239-u). A council is required to, among other things, develop and implement community drug abuse prevention programs; recruit, train, and utilize volunteers from the community to serve without charge in its programs; authorize persons approved by the council to contact and counsel persons within the community suspected of using narcotics and/or dangerous drugs or those persons allegedly having knowledge of such usage (GML §239-u[a], [b] and [e]); and to employ such clerks and other employees as it may from time to time require with the approval of the local legislative body (GML §239-u). Further, “the council may, with the approval of the local legislative body, apply to the local agency designated to prepare and implement the special grants for local volunteer programs which conform to and are included within the comprehensive plan” (GML §239-u).
Opinions of the State Comptroller confirm that councils are not autonomous or independent bodies. The authority to create a council denotes “the general power and control over the fiscal affairs and expenditures” of a council (Op. St. Comptroller No. 71-603). For example, the creating municipality has the authority to fix a schedule of fees to be paid by individuals requesting a particular service (Op. St. Comptroller No. 70-369); and to control moneys raised in the private sector contributed directly to a council or to a municipality for council purposes (Op. St. Comptroller No. 71-106).
Based on the foregoing, because a local drug abuse prevention council is a creation of the General Municipal Law, it is our opinion that local drug abuse prevention councils constitute “agencies” whose records fall within the coverage of the Freedom of Information Law.
Second, with respect to your underlying substantive request regarding the accessibility of “confidential survey results”, we note that access to the results would depend in large part on the format the results are presented. Without knowledge of the content of the survey, or the method in which the results might be recorded, we are unable to render a comprehensive opinion. Nevertheless we offer the following comments as guidance.
In general, 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.
Perhaps §87(2)(b), which permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy" would apply to such survey results In turn, §89(2)(b) includes examples of unwarranted invasions of privacy, the first two of which make reference to medical information. Most pertinent perhaps is a decision rendered by the State's highest court, Hanig v. Department of Motor Vehicles [79 NY2d 106 (1992)], in which it was found that records containing details in the nature of medical information could be withheld, even if they were not prepared by a health care provider or involved treatment.
From our perspective, if release of the survey results would identify persons participating in a drug treatment program, for example, the council could likely deny access to the identities of such persons based on §89(2)(b). On the other hand, if the results contain nothing more than aggregate numbers of persons attending programs or requesting services, most likely disclosure would not result in an unwarranted invasion of personal privacy.
Finally, because we are not familiar with the type of survey at issue, we note that if there is a provision of state or federal law that makes certain information confidential, such provision of law may prohibit the council and/or the authorizing agency from releasing the material. However, we note that an assertion of a confidentiality that is not based on a statute is largely meaningless. Based on several decisions, an assertion, a request for, or a promise of confidentiality, unless it is based upon a statute, is generally meaningless. When confidentiality is conferred by a statute, an act of the State Legislature or Congress, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v. BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion or promise of confidentiality, without more, would not in our view serve to enable an agency to withhold a record.
If the entity about which you write is not a drug abuse prevention council pursuant to General Municipal Law, §239-u, please advise. On behalf of the Committee on Open Government we hope this is helpful to you.