January 8, 2008
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.
I have received your letter and the materials attached to it. Please accept my apologies for the delay in response.
You have sought an advisory opinion concerning the “[a]pplicability of the intra-agency exemption under § 87 (2) (g) of the Public Officers Law to request under Personal Privacy Protection Law.” By way of background, your client requested records from her former employer, the Higher Education Services Corporation, pertaining, in brief, to a certain incident in which she was involved, concerning the decision to terminate her employment, and evaluations of her job performance. Although eight pages of material were disclosed, other aspects of the request were denied, initially on the basis of the provision cited above, as well as §95(6)(d) of the Personal Privacy Protection Law (hereafter “the PPPL”). The initial denial of access was affirmed following an appeal, and it was added that “these materials fall outside the scope of what is defined in the PPPL as a ‘record’ to which HESC must provide access.” You noted in your letter that conversations with its staff indicate that HESC relied in part on the decision rendered in Gorski v. Mullins, Supreme Court, Albany County, July 1, 2003).
In this regard, I offer the following comments.
First, as you are aware, the Freedom of Information Law (hereafter “FOIL”) defines the term “record” for purposes of statute broadly in §86(4) to include:
"...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 function, content or origin of documentary materials do not bear upon the applicability of FOIL; all such materials fall within the ambit of that statute.
As a general matter, FOIL 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.
In consideration of the nature of the records sought and the exception to FOIL to which you and HESC referred, 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.
I point out that the Court of Appeals in Gould v. New York City [89 NY2d 267 (1996)] 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 my view, insofar as the records at issue consist of recommendations, advice, opinions or constructive material, for example, they could be withheld under FOIL; insofar as they consist of statistical or factual information, or other information accessible under subparagraphs (ii), (iii) or (iv) of §87(2)(g), such as final agency determinations, I believe that they must be disclosed, unless a separate exception is applicable.
Most importantly, insofar as the PPPL applies, I believe that the result would be different. FOIL deals with rights of access conferred upon the public generally; the PPPL 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 PPPL, 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)].
I am unaware of the extent to which the materials sought constitute “records” for the purposes of the PPPL. However, in consideration of the nature of the request, it would appear that most, if not all, of the materials would be subject to rights conferred by that statute.
Rights conferred upon individuals by the PPPL are separate from those granted under the FOIL. Under §95 of the PPPL, 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.
I am mindful of the decision rendered in Gorski and respectfully disagree with certain aspects of the holding. The court referred to interference with the deliberative process and the ability of persons in an advisory role to express their opinions freely. With due respect to the Court, I believe that a core purpose of the PPPL involves the ability of an individual who is the subject of records, a data subject, to gain access such records and potentially challenge their accuracy. For instance, if a co-worker sends memorandum to his or her supervisor suggesting that a fellow employee is drunk, the fellow employee in my view has a right to gain access to that record pursuant to §95(1) of the PPPL. It is important to have the right to do so, particularly if, for example, that employee was experiencing the effects of medication. In that circumstance, the subject of the record would have the opportunity under §95(2) of the PPPL to correct the record, and if that request is refused, to include his or her explanation of the matter in the record itself. By so doing, he or she might not be penalized or stigmatized based on what might have been inaccurate conjecture regarding the employee’s behavior or demeanor.
In sum, the PPPL does not contain an exception to rights of access comparable or analogous to §87(2)(g) of the FOIL. Consequently, I believe that your client should enjoy rights of access to records pertaining to herself that are subject to the PPPL in accordance with §95(1) of that statute, except to the extent that disclosure would constitute an unwarranted invasion of the personal privacy of persons other than herself, or which are outside the scope of rights conferred by that statute in accordance with §95(6)(d).
The provision cited in the preceding sentence indicates that rights of access of a data subject to not apply to:
“attorney’s work product or material prepared for litigation before judicial, quasi-judicial, or administrative tribunals, as described in subdivisions (c) and (d) of section three thousand one hundred one of the civil practice law and rules...”
As you are aware, subdivisions (c) and (d) of §3101 of the CPLR respectively exempt the work product of an attorney and material prepared for litigation from disclosure.
I hope that I have been of assistance.
Robert J. Freeman
cc: Corinne Biviano
Cheryl B. Fisher