March 10, 2009
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 and the materials relating to it. Please accept my apologies for the delay in response.
The issue involves a request made to the Town of Oyster Bay for records “pertaining to complaints, inspections, code compliance pertaining to 14 Warren Drive, Syosset from 2006 to the present date.” The Town denied the request pursuant to §87(2)(e)(i) of the Freedom of Information Law, stating that an agency may withhold records “that are compiled for law enforcement investigations.” When you questioned the basis for the denial and cited Young v. Town of Huntington [388 NYS2d 978 (1966)], the Town Attorney wrote that “a violation of our zoning code is a crime, specifically a misdemeanor. The Young decision states that there is an exemption available for criminal investigative files.”
In this regard, first, the Young decision was rendered under the Freedom of Information Law as originally enacted in 1974. That statute contained an exception concerning “investigatory files compiled for law enforcement purposes.” The original law was repealed and replaced in 1978, and the new law, although amended in several ways, remains intact in its structure. In brief, that 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.
The provision cited, §87(2)(e), 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...”
The provision quoted above involves the ability of an agency to withhold records compiled for law enforcement purposes, but only to the extent that disclosure would result in the harm described in subparagraphs (i) through (iv). In many circumstances, a “blanket” denial of access to the entirety of records relating to an investigation is inconsistent with law, and portions of the records must be disclosed.
In my opinion, pertinent in the context of code enforcement is §87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would constitute “an unwarranted invasion of personal privacy.” It has consistently been advised, for instance, that those portions of a complaint or other record which identify complainants may be deleted on the ground that disclosure would result in an unwarranted invasion of personal privacy. I point out that §89(2)(b) states that an "agency may delete identifying details when it makes records available." Further, the same provision contains five examples of unwarranted invasions of personal privacy, the last two of which include:
"iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or
v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."
In my opinion, what is relevant to the work of the agency is the substance of the complaint, i.e., whether or not the complaint has merit. The identity of a member of the person who made a complaint is often irrelevant to the work of the agency, and in most circumstances, I believe that identifying details may be deleted.
Also relevant may be §87(2)(e)(iii), which, again, authorizes an agency to withhold records compiled for law enforcement purposes to the extent that disclosure would “identify a confidential source or disclose confidential information relating to a criminal investigation.” In my view, the identity of a witness or complainant may be deleted based on this provision when he or she is a “confidential source.” As indicated previously, I believe that a complainant’s identity may alternatively be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.
In sum, it may be that portions of the records of your interest might properly be withheld, but that other aspects of the records must be disclosed to comply with law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Steven L. Labriola
Frederick E. Mei