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FOIL-AO-17403

                                                                                                October 10, 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.

Dear

            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records pertaining to your client, Mr. Anton Haas, made to the NYS Liquor Authority.  Specifically, you requested “any and all records concerning a contact by Mr. Haas to Mr. Daniel A. Malay on or about March 5, 2008, including but not limited to any records sent to the New York State Commission on Public Integrity”.  Your request was denied based on Executive Law §94(17)(a), a statute specifying that the records at issue maintained by the Commission on Public Integrity are exempt from the Freedom of Information Law.  In short, you ask whether the records kept and sent by the Liquor Authority are protected from disclosure as records of the Commission, and if not, whether the provisions of §87(2)(g) of the Freedom of Information Law would require disclosure, at least in part. 

            From our perspective, the records you have requested would be required to be disclosed to your client, at least in part.  In this regard, we offer the following comments.

            First, the Freedom of Information Law is applicable to all agency records, and §86(4) defines the term “record” expansively 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, it is clear in our opinion that materials generated by an agency with respect to a particular incident are agency records that fall within the coverage of the Freedom of Information Law. 

            When an agency prepares a record and copies are transmitted or acquired to one or more other agencies, any of those agencies in receipt of a FOIL request would be obliged to respond [see e.g., Muniz v. Roth, 620 NYS 700 (1994)].  Perhaps most significant for purposes of illustration is a decision rendered by the Court of Appeals involving a request made to a state agency for copies of subpoenas issued by a court for that agency’s records.  To put the matter in context, while the Freedom of Information Law includes all state and municipal agencies within its scope, the courts are excluded from the coverage of that law.  That being so, the agency denied access, contending that court records in its possession were not covered by the Freedom of Information Law.  In Newsday v. Empire State Development Corporation [98 NY2d 359 (2002)], however, the Court of Appeals unanimously disagreed, stating that the records were subject to the Freedom of Information Law, “irrespective of whether they are deemed to have been a mandate of a court and issued for a court.”  The Court found further that “ESDC, a state public corporation, is undeniably an agency under FOIL.  It presently has physical possession of the subpoenas.  Thus, in the hands of ESDC, the subpoenas constitute agency records: ‘information kept [or] held * * * by * * * agency [i.e., ESDC] * * * in any physical form whatsoever.”

            In like manner, we believe that copies of the records transmitted to the Commission that remain in the possession of an agency are records of that agency for the purpose of consideration of a request made under the Freedom of Information Law. 

            Second, as you are aware, the Freedom of Information Law generally requires that government agency records be made available for inspection and copying, unless a ground for denial of access may properly be asserted.  Here, the initial ground for denial, §87(2)(a), is relevant, in light of the Authority’s claim that Executive Law would prohibit disclosure of the records.  That provision authorizes an agency to withhold records that “are specifically exempted from disclosure by state or federal statute.”  One such statute, §94 of the Executive Law, deals with the powers and duties of the Commission, including records in the possession of the Commission.  Paragraph (a) of subdivision (17) of that section states that:

“Notwithstanding the provisions of article six of the public officers law, the only records of the commission which shall be available for public inspection and copying are:

(1) the information set forth in an annual statement of financial  disclosure filed pursuant to section seventy-three-a of the public  officers law except the categories of value or amount, which shall remain confidential, and any other item of information deleted  pursuant to paragraph (h) of subdivision nine of this section;

(2) notices of delinquency sent under subdivision eleven of this section;
(3) notice of reasonable cause sent under paragraph (b) of subdivision twelve of this section;

(4) notices of civil assessments imposed under this section which shall include a description of the nature of the alleged wrongdoing, the procedural history of the complaints, the findings and determinations made by the commission, and any sanction imposed;

(5) the terms of any settlement or compromise of a complaint or referral which includes a fine, penalty or other remedy; and

(6) those required to be held or maintained publicly available pursuant to article one-A of the legislative law.”

            Article Six of the Public Officers Law is the Freedom of Information Law, and based on the foregoing, the only records required to be disclosed by the Commission are those identified in subparagraphs (1) through (6) of paragraph (a) of §94(17).  That being so, other records in possession of the Commission, including the records at issue, are beyond the coverage of the Freedom of Information Law.

            Third, the fact that records are exempt from disclosure to the public when in possession of the Commission does not, in our opinion, render them exempt in like manner when duplicates or originals are in possession of another agency.  There are a variety of instances in which records sought from one agency are exempt from disclosure, but in which the same records in possession of a different agency are accessible.  For instance, in a case involving a request for W-2 forms maintained by a town pertaining to its employees, it was contended that W-2 forms are specifically exempted from disclosure by statute on the basis of 26 USC 6103 (the Internal Revenue Code) and §697(e) of the Tax Law.  In an effort to obtain expert advice on the matter, we contacted the Disclosure Litigation Division of the Office of Chief Counsel at the Internal Revenue Service to discuss the issue and was informed that the statutes requiring confidentiality pertain to records received and maintained by the Internal Revenue Service; those statutes do not pertain to records kept by an individual taxpayer [see e.g., Stokwitz v. Naval Investigation Service, 831 F.2d 893 (1987)], nor are they applicable to records maintained by an employer.  The attorney for the Internal Revenue Service said that the statutes in question require confidentiality only with respect to records that it receives from the taxpayer.  The issue was raised and answered in the same manner by the State Department of Taxation and Finance with respect to its records pertaining to taxpayers.  Based on that information and an opinion prepared by this office, it was held in Day v. Town Board of Town of Milton (Supreme Court, Saratoga County, April 27, 1992) that W-2 forms in possession of a town are subject to rights of access conferred by the Freedom of Information Law.  More recently, in a case involving data maintained by a state agency “derived from tax forms or may be compiled in the same manner as tax forms does not place such data within the protection of the confidentiality provisions of the Tax Law (see Tax Law §202, §697[e]; 26 USC 6103)” (The Herald Company v. New York State Department of Economic Development, Supreme Court, Albany County, February 8, 2007).

            In short, although records may be exempt from disclosure when in possession of an agency that is the subject of a specific statute that confers confidentiality, that restriction does not render duplicate or original records maintained by other agencies confidential, unless there is statutory direction to do so.  An example of a statute that requires confidentiality on the part of recipients of information, §33.13 of the Mental Hygiene Law, states that clinical records pertaining to patients or clients maintained by a mental health facility are confidential, and subdivision (f) states that information disclosed to third parties “shall be kept confidential by the party receiving such information and the limitations on disclosure in this section shall apply to such party.”  Section 94(17)(a) of the Executive Law contains no such direction.  Therefore, in our opinion, §94(17)(a) is inapplicable to records in the Authority’s possession, and there is no statutory prohibition regarding disclosure by the Authority.  Rather, we believe that the records in your possession fall within the coverage of the Freedom of Information Law.  This is not say that they must be disclosed; on the contrary, we agree that they may be accessible or deniable depending on their content.

            As noted previously, the Freedom of Information Law is based on a presumption of access.  Stated differently, all agency records are accessible to the public, except those records portions thereof that may be withheld in accordance with exceptions to rights of access appearing in paragraphs (a) through (j) of §87(2).

            While we are unfamiliar with the contents of the documentation falling within the scope of your request, based on the Authority’s response, it appears that §87(2)(g) is particularly relevant.  Internal records pertaining to an incident, and a record sent from the Authority to the Commission, both of which are agencies, would fall within its scope.  That provision 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..."

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.

            With regard to your specific questions regarding a final determination and instructions to staff that affects the public, in our opinion, an agency’s decision to refer a matter to the Commission for a determination would constitute neither a final agency determination nor an instruction to staff that affects the public.  In our view, insofar as the records at issue consist of recommendations, advice or opinions for example, they could be withheld under Freedom of Information Law; insofar as they consist of statistical or factual information, we believe that they must be disclosed, unless a separate exception is applicable.

            Also significant, since you requested records in your capacity as counsel to Mr. Haas, however, the Personal Privacy Protection Law (Public Officers Law, Article 6-A) applies and the result may be different.  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 himself, 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.  In short, if none of the exceptions apply, we believe that the records should be made available to you and your client.

            On behalf of the Committee on Open Government, we hope this is helpful to you.

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:jm

cc: Thomas J. Donohue, Counsel