April 1, 2008
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 facts presented in your correspondence.
I have received your letter concerning a denial of a request by the New York City Transit Authority for a document pertaining to you, a “final evaluation of the separating employee”, on the ground that it is “an interagency document.” You have sought guidance concerning the propriety of the response, and in this regard, I offer the following comments.
First, §86(3) of the Freedom of Information Law defines the term “agency” to mean:
"...any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
Therefore, entities of state and local government in New York constitute “agencies”. “Inter-agency” documents would be those transmitted between or among agencies; “intra-agency” documents would be those transmitted within an agency.
Second, as a general matter, 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.
One of the exceptions to rights of access, §87(2)(g), pertains to inter-agency and intra-agency documents and 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 my view be withheld.
Perhaps more significant in consideration of your request is the Personal Privacy Protection Law, which applies to state agencies only. The New York City Transit Authority is a subsidiary of the Metropolitan Transportation Authority (MTA), which is a state agency. The Freedom of Information Law deals with rights of access conferred upon the public generally; the Personal Privacy Protection Law 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 Personal Privacy Protection Law, 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)].
Rights conferred upon individuals by the Personal Privacy Protection Law are separate from those granted under the Freedom of Information Law. Under §95 of the Personal Privacy Protection Law, 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. Additionally, §95(2) provides a data subject with the right to attempt to correct or amend records pertaining to him or her “which he or she believes is not accurate, relevant, timely or complete.”
It is suggested that you might either resubmit your request, citing §95 of the Personal Privacy Protection Law as the basis for the request, or that you refer to that provision in an appeal.
The full text of the Personal Privacy Protection Law is available on our website, as is “You Should Know”, a guide to that law.
I hope that I have been of assistance.
cc: Records Access Officer, NYC Transit Authority