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FOIL-AO-17427

                                              
November 5, 2008

E-Mail

TO:                 

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 information presented in your correspondence.

Dear :

            I have received your letter in which you sought an advisory opinion concerning the ability of the New York State Department of Health (DOH) to withhold information that it may receive from the United States Department of Health and Human Services (DHHS) Coordinating Office for Terrorism Preparedness and Emergency Response. 

            In brief, DHHS has offered to inform DOH of the locations of facilities in New York that “have the potential to pose a severe threat to public health and safety, animal or plant health, or animal or plan products”, as specified in federal regulations.  That offer, however is, according to your letter, conditioned on submission to DHHS of information designed to ensure protection of the information from disclosure, including a Memorandum of Understanding with the recipient of the information in the state, a plan for protection, and copies of the state’s policies and procedures for protection of the information within the state.”  DHHS also requires a written legal opinion from a state’s attorney general advising that the information provided can be protected under state law.  You indicated that DHHS has agreed that an opinion offered by this office would satisfy that requirement.

            As you are aware, the Committee on Open Government was created as part of the state’s Freedom of Information Law in 1974.  Section 89(1)(b) of the Public Officers Law states that:  “The Committee shall: i.  furnish to any agency advisory guidelines, opinions or other appropriate information regarding this article...”, which is the Freedom of Information Law, Article 6 of the Public Officers Law.  Although opinions rendered by the Committee are not binding, it has been held in several judicial determinations that when such an opinion “is consistent with that of the agency administering the records at issue...that interpretation is entitled to deference so long as it is not irrational or unreasonable” [see e.g., Brown v. Goord, 45 AD3d 932 930, 932 (2007)].

            You indicated that the records at issue are exempt from disclosure pursuant to 42 U.S.C. §262a(h), which is a portion of the Public Health Security and Bioterrorism and Bioterrorism Preparedness and Response Act of 2002.   That provision in paragraph (1) entitled “Nondisclosure of certain information” states that “No Federal agency specified in paragraph (2) shall disclose under section 552 of title 5 any of the following....”  As I understand the records at issue, they are included in the description of records deemed nondisclosable under 5 U.S.C §552, which is the federal Freedom of Information Act. 

            While a federal agency may be authorized by the provision cited above to withhold certain records, I believe that the federal Freedom of Information Act is applicable only to records maintained by federal agencies, and that it does not apply to records that may come into the possession of a state agency, such as DOH.  Any such records would in my view fall with the scope of the New York Freedom of Information Law.  That statute pertains to all records of an agency of state or local government in New York, and §86(4) defines the term “record” to mean:

"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 materials received by DOH would constitute agency “records” for purposes of the Freedom of Information Law.

            As a general matter, like the federal Freedom of Information Act, the New York counterpart 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)(f), is, in my view, most pertinent in considering the authority of DOH, or any other agency of state or local government in New York, to deny access to the records at issue.  For more than twenty years that provision authorized agencies to withhold records insofar as disclosure “would endanger the life or safety of any person” (emphasis mine).  Although an agency has the burden of defending secrecy and demonstrating that records that have been withheld clearly fall within the scope of one or more of the grounds for denial [see §89(4)(b)], in the case of the assertion of that provision, the standard developed by the courts was less stringent. In citing §87(2)(f), it was found that:

"This provision of the statute permits nondisclosure of information if it would pose a danger to the life or safety of any person.  We reject petitioner’s assertion that respondents are required to prove that a danger to a person’s life or safety will occur if the information is made public (see Nalo v. Sullivan, 125 AD2d 311, 312, lv denied 69 NY2d 612).  Rather, there need only be a possibility that such information would endanger the lives or safety of individuals....”[Stronza v. Hoke, 148 AD2d 900,901 (1989)].

            The principle enunciated in Stronza appeared in several other decisions [see Ruberti, Girvin & Ferlazzo v. NYS Division of the State Police, 641 NYS 2d 411, 218 AD2d 494 (1996), Connolly v. New York Guard, 572 NYS 2d 443, 175 AD 2d 372 (1991), Fournier v. Fisk, 83 AD2d 979 (1981) and McDermott v. Lippman, Supreme Court, New York County, NYLJ, January 4, 1994], and it was determined in American Broadcasting Companies, Inc. v. Siebert that when disclosure would "expose applicants and their families to danger to life or safety", §87(2)(f) may properly be asserted [442 NYS2d 855, 859 (1981)]. Also notable is the holding by the Appellate Division in Flowers v. Sullivan [149 AD2d 287, 545 NYS2d 289 (1989)] in which it was held that “the information sought to be disclosed, namely, specifications and other data relating to the electrical and security transmission systems of Sing Sing Correctional Facility, falls within one of the exceptions” (id., 295).  In citing §87(2)(f), the Court stated that:

“It seems clear that disclosure of details regarding the electrical, security and transmission systems of Sing Sing Correctional Facility might impair the effectiveness of these systems and compromise the safe and successful operation of the prison.  These risks are magnified when we consider the fact that disclosure is sought by inmates.  Suppression of the documentation sought by the petitioners, to the extent that it exists, was, therefore, consonant with the statutory exemption which shelters from disclosure information which could endanger the life or safety of another” (id.).

            In short, although §87(2)(f) referred to disclosure that would endanger life or safety, the courts have clearly indicated that “would” meant “could.”

            In an effort to ensure that agencies are able to deny access to records insofar as disclosure could reasonably be expected to endanger life or safety, the Committee on Open Government recommended in a report to the Governor and the State Legislature that “would” be replaced with “could”, and legislation was enacted in 2003 accomplishing that goal.

            Based on the language of the Freedom of Information Law, several judicial decisions interpreting §87(2)(f), and the amendment of that provision, it is clear in my opinion that an agency subject to the Freedom of Information Law, such as DOH, has the ability to withhold the records that are the subject of your inquiry when there is a reasonable likelihood that disclosure “could endanger the life or safety of any person.” 

            I hope that the foregoing satisfactorily meets the condition imposed by DHHS and that I have been of assistance.

 

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