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FOIL-AO-17747

 

                                                                                                August 10, 2009

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 and the material relating to it.  You have sought an advisory opinion concerning the propriety of a denial of your request for records of the New York City Department of Buildings.

            In February of this year, you requested an “electronic copy of the list of building to which public records access is restricted under the protocol developed by the Buildings, Police and Law departments.”  Those buildings are characterized as “sensitive buildings”, and you wrote that an article in the Daily News indicated that the list refers to approximately 2,500 such buildings.  The request was initially denied by the Department’s records access officer on the basis of §87(2)(f) of the Freedom of Information Law, who also referred to §89(5)(1-a). The denial was later affirmed, again on the basis of §87(2)(f).  That provision authorizes an agency to deny access insofar as disclosure “could endanger the life or safety of any person.

            Section 89(5)(a-1) states in relevant part that:

“A person or entity who submits or otherwise makes available any records to any agency, may, at any time, identify those records or portions thereof that may contain critical infrastructure information, and request that the agency that maintains such records except such information from disclosure under subdivision two of section eighty-seven of this article.”

            Section 86(5) defines “critical infrastructure” to mean:

“systems, assets, places or things, whether physical or virtual, so vital to the state that the disruption, incapacitation or destruction of such systems, assets, places or things could jeopardize the health, safety, welfare or security of the state, its residents or its economy.”

            Subdivision (2) of §87 is a focal point of the Freedom of Information Law, indicating that it 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.  Although the law defines “critical infrastructure” and refers to “critical infrastructure information”, there is no exception to rights of access that deals directly with either of those phrases. 

            In your appeal, you stressed that you did not seek building plans, critical infrastructure information, or details pertaining to sensitive buildings, but rather that the request merely involves a list that identifies those buildings.  Moreover, based on a review of the Department’s  “protocol”, a request for plans relating to a sensitive building made pursuant to the Freedom of Information Law by a member of the public involves a special procedure. In short, a special form must be completed, the applicant must present identification, as well as letter from a property owner authorizing disclosure.

            The documentation that you forwarded, which was prepared by agencies of New York City government, include guidance and direction to agency staff.  One such document states that “Sensitive buildings are buildings/properties that the Department of Buildings in a joint effort with the New York City Police Department (NYPD) considered to be highly susceptible to terrorist threats in light of the incidents of September 11, 2001.”  The same document specifies that:

“DOB will deny all requests for plans pursuant to Public Officers Law Section 87(f) [sic] that disclosure would endanger the life or safety of any person.  All requests for information other than plans should be granted unless otherwise cannot be disclosed under FOIL.  Records control officers must notify IAD of all FOIL requests for sensitive buildings.”

            The same direction appears in a memorandum sent to approximately a thousand City employees. 

            Compliance with the procedure by a person seeking plans pertaining to a particular building who is asked to disclose his/her identity and obtain a release by a property owner enables that person to ascertain that the building that is the subject of the request is a sensitive building.  Because that is so, from my perspective, the fact that a building is denominated as a sensitive building is not secret.  Further, because the locations of sensitive buildings are known to at least a thousand City employees, again, I do not believe that the content of the list that you have requested may justifiably be characterized as secret.

            With respect to the law, I point out that the Freedom of Information Law is permissive.  Although an agency may withhold records or portions of records in accordance with the grounds for denial of access, the Court of Appeals has stated that the agency is not required to do so [see Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].  The only instance in which records must be withheld would involve those situations in which a separate statute forbids disclosure.  I am unaware of any statute that would prohibit disclosure of the information sought.

            There are few decisions concerning the assertion of §87(2)(f).  However, the thrust of those decisions involves the likelihood that particular individuals or locations could be placed in jeopardy by means of disclosure.  In numerous situations in which the application of §87(2)(f) is at issue, a primary consideration involves the degree of detail contained in the records.  For instance, there is unquestionably an interest in ensuring a safe supply of water for the public, and proposals have been made, primarily in other jurisdictions, to require that maps indicating the location of water supplies be kept confidential.  That kind of proposal is, in my view, overly broad and largely unenforceable.  By means of example, I can see the Hudson River from my office, and Reservoir Road is likely close to a reservoir.  Maps that can purchased at any number of locations contain information of that nature.  On the other hand, if a map is so detailed that it indicates the location of certain valves, places where terrorists or others could deposit poisons or chemical or biological agents, perhaps it could be contended that there is a reasonable likelihood that disclosure, due to the degree of detail, could endanger life or safety.

            I believe that judicial decisions are consistent with the foregoing.  For instance, it was determined in American Broadcasting Companies, Inc. v. Siebert that disclosure of the home addresses of applicants for check cashing licenses would "expose applicants and their families to danger to life or safety" [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.).

            As I view the decisions cited above, the detail within the records justified the assertion of the exception.  In one case, the detail involved names and addresses of specific individuals; in the other, it involved “specifications” relating to electrical and security transmission systems.  The list that you requested does not include details in the nature of those found in the records that were the subjects of those decisions.

            In the context of your request, if you sought the plans or details relating to certain of the structures listed as sensitive buildings, perhaps those records or portions thereof could properly be withheld.  However, I do not believe that there is a likelihood that disclosure of the addresses of those buildings, without more, can be justified by means of the mere assertion of §87(2)(f).  Additionally, in consideration of the geography of New York City, its population density, the value of real estate, the City’s transportation system, it might be argued that nearly every building in the City could be characterized as “sensitive.”  

            Lastly, the Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [89 NY2d 267 (1996)], stating 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)" (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 an effort to resolve the matter and avoid costly and time consuming litigation, copies of this opinion will be sent to officials at the Department of Buildings.

            I hope that I have been of assistance.

RJF:jm
cc: Janine A. Gaylard
Angela Orridge