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FOIL-AO-17181

                                                                                                May 21, 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, unless otherwise indicated.

Dear

            I have received your letter and the materials attached to it.  In your capacity as Vice President and Deputy General Counsel of the New York Daily News, you have requested an advisory opinion concerning the propriety of a denial of access to records sought by Daily News columnist Michael Goodwin by the Albany County District Attorney.

            The request involved:

“Transcripts of witness interviews conducted as part of a preliminary inquiry by the District Attorney in 2007 into what the DA’s office called ‘the alleged misuse of New York State resources by the New York State Office of the Governor Eliot Spitzer (the ‘Executive Chamber’) and the New York State Division of State Police (the ‘State Police’).’”

In a report released in September of 2007, the District Attorney identified those interviewed, including former Governor Spitzer, four employees of the Executive Chamber, and the Acting Superintendent of the State Police.  The report contains extensive quotations from the transcript, concluded that no laws were broken and that “further inquiry or investigation would be entirely academic.”  The results of a separate review of the same issues made public on March 28 of this year characterized the September report as “closed.”

            Via a letter sent to Albany County Clerk Thomas Clingan, Assistant District Attorney Alison M. Thorne, the District Attorney’s FOIL Officer, denied the request in its entirety “pursuant to Public Officers Law §§87(2)(i), (ii), (iii), (iv)” [sic} “for the reasons articulated in Sanchez by Sanchez v. City of New York (201 AD2d 325 [1st Dept. 1994)” and because disclosure “may constitute ‘[a]n unwarranted invasion of personal privacy’ (Public Officers Law §89[2][b]).”

            In my opinion, which is based on the language of the Freedom of Information Law and numerous judicial decisions, the denial of the request is inconsistent with law.  In this regard, I offer the following comments.

            First, the decision cited by the District Attorney, Sanchez, did not involve a request made under the Freedom of Information Law.  Rather, it appears to have involved a discovery request in the context of litigation.  In citing precedent in a similar context, the Court in Sanchez referred to “the litigant’s need for protection”, finding that “one seeking disclosure first must demonstrate a compelling and particularized need for access” (id., 326).

            In contrast, the Court of Appeals has determined that the “need for production” is irrelevant when determining rights of access to records sought pursuant to the Freedom of Information Law.  In a decision focusing on requests made under that statute as opposed to the use of discovery under the Civil Practice Law and Rules (CPLR) in civil proceedings and in criminal proceedings under the Criminal Procedure Law (CPL), the principle is that the Freedom of Information Law confers rights of access upon the public generally, while the disclosure provisions of the CPLR or the CPL are separate vehicles that may require or authorize disclosure of records due to one's status as a litigant or defendant.

            As stated by the Court of Appeals in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency:  "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)].  Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)].  The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the CPLR.  Specifically, it was found that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.)  Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.

"CPLR article 31 proceeds under a different premise, and serves quite different concerns.  While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL.  Access to records under CPLR depends on status and need.  With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].

            In another decision by the Court of Appeals, it was held that the CPL does not limit a defendant's ability to attempt to obtain records under the Freedom of Information Law [Gould v. New York City Police Department, 89 NY2d 267 (1996)].

            In short, I believe that the Freedom of Information Law imposes a duty to disclose records, as well as the capacity to withhold them, irrespective of the need, status or interest of the person requesting them.

            Sanchez also referred to the protection of witness statements by the “public interest privilege” (id.).  While the public interest privilege or its equivalent may be pertinent in relation to discovery in litigation, the Court of Appeals has barred the assertion of the privilege when records are requested under the Freedom of Information Law.

            By way of background, when the Freedom of Information Law was initially enacted in1974, it required disclosure of specified categories of records.  In 1977, that version of the statute was repealed and replaced with the current statute, which became effective in 1978.  Although the Freedom of Information Law has been amended since then, its structure has remained intact.  In brief, 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.

            In view of the change in the law, the Court of Appeals abolished the governmental privilege in the context of requests made under the Freedom of Information Law in 1979, holding that: "[T]he common-law interest privilege cannot protect from disclosure materials which that law requires to be disclosed" [Doolan v. BOCES, 48 NY2d 341, 347].  In short, either records or portions thereof fall within the grounds for denial appearing in §87(2) or they do not; if they do not, there would be no basis for denial, notwithstanding a claim based on an assertion of a public interest, executive or governmental privilege.

            That conclusion has been confirmed on several occasions by the Court of Appeals, perhaps most notably in Gould, supra, in which it was held that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]).  As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" [89 NY2d 267, 275 (1996)].

            Just as significant, the Court in Gould repeatedly specified that a blanket denial of access to records is inconsistent with the requirements of the Freedom of Information Law.  In that case, the Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception different from those cited in response to Mr. Goodwin’s request.  The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports.  We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275).  The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).  If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox  Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

            In the context of your request, the District Attorney has engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate.  I am not suggesting that the records sought must necessarily be disclosed in full.  Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by that agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access.  As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).

            In short, I believe that the blanket denial of the request in inconsistent with the direction specified by the Court of Appeals.

            Second, the extent to which the exceptions in the Freedom of Information Law to which the District Attorney referred may properly be asserted is, in my opinion, highly questionable in consideration of the District Attorney’s own conclusion that the matter was “closed” and the disclosures that have been made and are widely known.

            The denial of the request cited “§87(2)(i), (ii), (iii), (iv)” of the Freedom of Information Law.  It is assumed that the reference should have been to subparagraphs (i) through (iv) of paragraph (e) of §87(2).  That provision permits an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv.  reveal criminal investigative techniques or procedures, except routine techniques and procedures."

            Again, the District Attorney’s own statement and characterization of the report indicates that reliance on subparagraphs (i) and (ii) is misplaced.  If the matter is “closed”, I do not believe that disclosure would interfere with an investigation or judicial proceeding or deprive a person of a fair trial.  With respect to subparagraph (iii), the “sources”, the witnesses interviewed, have all been identified by the District Attorney, upon release of his report.

            With respect to subparagraph (iv) pertaining to the authority to withhold records compiled for law enforcement purposes which, if disclosed, would reveal non-routine criminal investigative techniques and procedures, in Fink v. Lefkowitz [47 NY2d 567 (1979)], the Court of Appeals held that: 

"The purpose of this exemption is obvious.  Effective law enforcement demands that violators of the law not be apprised the nonroutine procedures by which an agency obtains its information (see Frankel v. Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution” (id., 573).

            From my perspective, conducting face to face interviews with witnesses could not be characterized as other than “routine.”  Further, in consideration of the District Attorney’s statements and the extensive public disclosure surrounding the matter, I do not believe that disclosure would result in the harmful effect of disclosure sought to be avoided in §87(2)(e)(iv).

            The remaining ground for denial offered by the District Attorney concerns the possibility that “revealing portions of the transcripts may constitute [a]n unwarranted invasion of personal privacy.”  The reference to “portions” of the transcripts strengthens the contention offered earlier, that the blanket denial of the request is inconsistent with law.  Similarly, the suggestion that disclosure “may” result in an unwarranted invasion of personal privacy is apparently inconsistent with an agency’s obligation to demonstrate, to prove, that disclosure would indeed result in the harm envisioned in the language of the exception.

            That latter principle was expressed in a decision rendered by the Court of Appeals that focused on the exception involving unwarranted invasions of personal privacy, Hanig v. State Department of Motor Vehicles [79 NY2d 106 (1992)].  In brief, the Court found that the exception applies in situations in which records pertaining to an individual include items “that would ordinarily and reasonably be regarded as intimate, private information” (id.,112).

            Although I am not familiar with the specific contents of the transcripts at issue, it does not appear that their content would include material that is indeed “intimate” or “personal”, but rather that they involve information relating to the functions and activities of the witnesses in their capacities as public officers or employees.

            While the standards concerning unwarranted invasions of personal privacy appearing in §89(2)(b) of the Freedom of Information Law are 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 those persons enjoy a lesser degree of privacy than others, for it has been found in various contexts that public officers and employees are required to be more accountable than others.  They have found that, as a general rule, records that relate to the performance of 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 the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Seelig v. Sielaff, 607 NYS2d 300, 201 AD2d 298 (1994); Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov.  22, 1977].

            In consideration of the functions, the stature, significance, and authority and indeed the power of the witnesses relative to the activities of state government, the extent to which disclosure would constitute an unwarranted invasion of personal privacy is, in my opinion, doubtful.  Unless it can be demonstrated that “the materials falls squarely within the ambit” of the exception, the material must be disclosed (Gould, Hanig, Fink, supra).  Further, in view of the publicity associated with “Troopergate” and the District Attorney’s investigation, it is unlikely that the burden of defending the denial of access can be met.

            Lastly, I recently received a letter addressed to you by Bryan M. Clenahan, Chair of the Albany County Legislature’s Law Committee.  It is my understanding that Mr. Clenahan serves as the County’s Freedom of Information Appeals Officer.  In brief, he rejected the District Attorney’s blanket denial of the request and reliance on Sanchez, supra and wrote that “the records should be released.”  However, he indicated that “[a]s FOIL Appeals Officer I do not have authority to enforce compliance” and that “[b]y copy of this letter decision to the DA, it is urged that all appropriate steps be taken by that office consistent with law.”

            I do not understand Mr. Clenahan’s conclusion.  Section 89(4)(a) of the Freedom of Information Law concerning the right to appeal a denial of access to records states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person thereof designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought." 

Based on the foregoing, assuming that the County Legislature, the governing body of Albany County government, has designated Mr. Clenahan as FOIL Appeals Officer, and that he has been granted the authority to “provide access to the record sought.”  If he does not have such authority, the public would effectively lose its ability to seek meaningful administrative review of an initial denial of access to records.  If that is so, in my view, either the County or the District Attorney has eliminated or negated the duty to abide by the Freedom of Information Law.

            In an effort to encourage reconsideration of the denial of the request and to avoid the possibility of the initiation of litigation, a copy of this opinion will be sent to the District Attorney.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director
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cc: Hon. David Soares
Michael Goodwin
Bryan M. Clenahan