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FOIL-AO-17794

                                                                                               

 

                                              
                                                                                                     September 1, 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.

Dear

            I have received your letter and the materials attached to it.  You have sought an advisory opinion concerning the propriety of a denial of access to a report prepared for the Board of Education of the Schenectady City Schools concerning allegations of workplace misconduct on the part of Steven Raucci.

            By way of background, it has become widely known in Schenectady and its environs that a former employee of the District, Steven Raucci, is the subject of 26 criminal charges, and that he is alleged to have engaged in a pattern of intimidation against those he perceived to be “enemies” of his friends or himself.  The criminal charges are not the subject of the report; rather, again, the report involves allegations of workplace misconduct, and an article published by the Gazette indicates that seven individuals “have filed or expressed an intent in filing lawsuits against the district.”

            The report at issue was prepared by Ms. Rachel Rissetto, and the contract, a “consultant agreement” between Ms. Rissetto and the District, states that she was retained to serve as “independent investigator” and would conduct an investigation and prepare a “comprehensive report with recommendations to Board of Education.” 

            Requests for the report were made by two Gazette writers, and they were denied in their entirety based on two exceptions to rights of access: first, that the report “is an intra-agency material that does not fall in any of the categories which require disclosure under Public Officers Law section 87(2)(g)”; and second, that “the requested records is a record that would constitute an unwarranted invasion of personal privacy and thus does not require disclosure under Public Officers Law section 87(2)(b).”  In addition, articles indicate that in late July, the District and its representatives asserted that they were withholding the report due to “pending claims”, a contention that was not made in the written denials of the requests.

            From my perspective, although the two exceptions cited by the District are pertinent in analyzing rights of access, or conversely, the authority of the District to deny access, it is unlikely that they serve to enable the District to withhold the report in toto.  In this regard, I offer the following comments.

            First and perhaps most importantly, the Freedom of Information 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.  It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow.  In our view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld.  That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

            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, 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)" [89 NY2d 267, 275 (1996)].

            Just as significant, the Court in Gould repeatedly specified that a categorical 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).  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 School District has engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate. I am not suggesting that the report must be disclosed in full.  Rather, based on the direction given by the Court of Appeals in several decisions, the report must be reviewed by the District 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 indicated earlier, one of the exceptions in the Freedom of Information Law relied on by the City to deny access to the records, §87(2)(g), permits 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..."

         It is noted that 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.

            I point out that, even though the report was prepared by a consultant, §87(2)(g) remains applicable.  In a discussion of the issue of records prepared by consultants for agencies, the Court of Appeals stated that:

"In connection with their deliberative process, agencies may at times require opinions and recommendations from outside consultants.  It would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies.  Accordingly, we hold that records may be considered 'intra-agency material' even though prepared by an outside consultant at the behest of an agency as part  of the agency's deliberative process (see, Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD 2d 546, 549, supra; Matter of  124 Ferry St. Realty Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation v. Town of Webster, 65 NY 2d 131, 132-133 (1985)].

            Based upon the foregoing, the report prepared by the consultant may be withheld or must be disclosed in consideration of the same standards as in cases in which records are prepared by the staff of an agency.  It is emphasized that the Court in Xerox specified that the contents of intra-agency  materials determine the extent to which they may be available or withheld, for it was held that:

"While the reports in principle may be exempt from disclosure, on this record - which contains only the barest description of them - we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for 'intra-agency materials,' as claimed by respondents.  To the extent the reports contain 'statistical or factual tabulations or data' (Public Officers Law section 87[2][g][I], or other material subject to production, they should be redacted and made available to the appellant" (id. at 133).

            Also pertinent is the direction offered by the Court of Appeals in Gould, supra, concerning the meaning of “factual data” in §87(2)(g)(i).  The Court found that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]).  Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][i].  Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182).

"Against this backdrop, we conclude that the complaint follow-up reports contain substantial factual information available pursuant to the provisions of FOIL.  Sections of the report are devoted to such purely factual data as: the names, addresses, and physical descriptions of crime victims, witnesses, and perpetrators; a checklist that indicates whether the victims and witnesses have been interviewed and shown photos, whether crime scenes have been photographed and dusted for fingerprints, and whether neighborhood residents have been canvassed for information; and a blank space denominated 'details' in which the officer records the particulars of any action taken in connection with the investigation" (id., 276-277)."

            One of the Gazette articles attached regarding the matter states that the District, in response to a request made under the Freedom of Information Law, disclosed a breakdown of the consultant/investigator’s time spent in the preparation of the report.  The breakdown indicates that “Rissetto spent 55.5 hours interviewing people, but who she interviewed and other documents she reviewed have been blacked out.”  It is assumed that most, if not all of those interviewed are present or former officers or employees of the District.  From my perspective, portions of the records that identify those interviewed consist of factual information that must be disclosed.  Further, many of the comments by those interviewed consist of factual information, i.e., Mr. Raucci arrived at the office at 8 a.m. and left at 4:30 p.m.; 5 assignments were completed by the end of the month; he wore a red tie on Tuesday the 14th, etc.   There are any number of entries in the records of the interviews that likely consist of “factual data” accessible under subparagraph (i) of §87(2)(g), unless a different exception applies.  Other entries might, on the other hand, be deniable, i.e., he appeared to be in a bad mood, the atmosphere in the office was tense, and the like.  Those latter statements would be expressions of opinion which, in my view, may be withheld.

            If my assumption is accurate, substantial elements of the report, as well as related records, consist of factual information that must be disclosed, again, unless a different exception to rights of access may justifiably be asserted.  In that event, it is reiterated that, based on the direction given by the state’s highest court, District staff are required to review the report, line by line, to determine which portions consist of statistical or factual information.

            As suggested in response to the request for the report and the appeal that followed, the other exception that may be applicable is §87(2)(b), which provides that an agency may withhold records or portions of records the disclosure of which would constitute “an unwarranted invasion of personal privacy.”

            Based on the judicial interpretation of the Freedom of Information Law, it is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those individuals are required to be more accountable than others.  The courts have found that, as a general rule, records that are relevant to the duties of those persons 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, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that items are irrelevant to the performance of their duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov.  22, 1977, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal attorney that could indicate how that person spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social security numbers].

            The Court of Appeals has also held that a standard for determining when disclosure would constitute an unwarranted invasion of personal privacy involves the reasonable person of ordinary sensibilities, and whether a reasonable person would consider an item to be intimate or sensitive [Hanig v. State Department of Motor Vehicles, 79 NY2d 106 ( 1992)].

            There are numerous instances in which the identities of public officers and employees and details about them are made known.  For instance, the Freedom of Information Law, §87(3)(b), has long required that each agency is required to maintain and make available a payroll record identifying all officers or employees of an agency by name, public office address, title and salary.  During an interview, a public employee might say:  “I arrived at work at 8:30 a.m., but I had been absent for work for the past two days and claimed sick leave.”  That would be factual in nature, and the Court of Appeals has held that records indicating days and dates of sick leave used by a public employee must be disclosed, for disclosure would result in a permissible, not an unwarranted, invasion of personal privacy (Capital Newspapers v. Burns, supra).

            In the context of the kind of interviews that were likely carried out, and in view of the exceptions to rights of access cited by the District and discussed here, I believe that they must be considered in conjunction with one another.  Typical responses to an interview might be: “I know that he did”....such and such; “I saw Raucci doing”....X; “I heard him say....”; “I was told by Mr. Raucci not to file a grievance”, etc.  Statements of that nature in my view consist of factual information, and there is nothing about them that could be characterized as intimate or highly personal.  That being so, I believe that those and similar commentaries would be accessible.  Again, they would consist of factual information, disclosure would not constitute an unwarranted invasion of personal privacy, and, therefore, they must be disclosed, for neither of the exceptions could properly be asserted.  In contrast, a clear statement of opinion, such as “I think he’s a bad guy”, or “He seemed to be looking at a certain part of my anatomy” would constitute deniable intra-agency material, and with a name included, the latter might constitute an unwarranted invasion of privacy.  Those kinds of comments that are expressions of opinion and/or which include intimate, personal information that might justifiably be withheld.

            I stress that the Court of Appeals in Gould, supra, cited Ingram v. Axelrod, a decision rendered by the Appellate Division, Third Department [90 AD2d 568 (1982)], in which the Court found that a chronology of events, for example, consists of factual information that must be disclosed, and that when opinions and facts are “intertwined”, an agency is obliged to review the record for the purpose of identifying and disclosing factual information contained in the record.  The point is that portions of the report that include the identification of public officers and employees cannot, in my view, be withheld in every instance, nor can the entirety of their statements.  To comply with law, again, the report must be reviewed to ascertain which portions may justifiably be withheld.

            Other aspects of the report may not focus on Mr. Raucci or others, but may be significant in understanding the manner in which the contractual duties of the consultant/investigator were carried out. In similar situations, reports contain a description of the methodology employed by a consultant/investigator and detail the process by which an investigation or inquiry was accomplished.  Those portions of the report would consist of intra-agency material but would be wholly factual and, therefore, must, in my view, be disclosed.

            A remaining issue concerning intra-agency material that is often raised involves a contention that a document may be a draft, or that it does not reflect a “final” decision or outcome.  Those contentions are, based on the language of the law and the direction provided by the Court of Appeals, largely irrelevant.  As you may be aware, the Freedom of Information Law is applicable to all agency records, and §86(4) of that statute 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."

          There is no exclusion or reference to “drafts” or documentation that may be “preliminary” in nature.  One of the contentions offered by the New York City Police Department in Gould, supra, was that certain reports could be withheld because they are not final and because they related to incidents for which no final determination had been made.  The Court of Appeals rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][111]).  However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions.  Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [Gould et al. v. New York City Police Department, 87 NY2d 267, 276 (1996)].

            In view of the foregoing, that a document may not reflect a final determination or may be characterized as a draft does not remove it from rights of access.

            With respect to the portions of the report that focus on Mr. Raucci, as suggested above, some may involve purely factual information that is neither sensitive nor intimate.  Others may include unsubstantiated allegations of misconduct.  In that latter situation, because there has been no finding or admission of misconduct, I believe that such allegations and similar portions of the report may be withheld as an unwarranted invasion of personal privacy, or as intra-agency material, or both [see Herald Company v. School District of City of Syracuse, 430 NYS2d 460 (1980)].  A statement such as, “I believe Mr. Raucci was doing terrible things” would be, at present, an unsubstantiated allegation deniable under §87(2)(g), and it might also be contended, since it is unproven, that the allegation would, if disclosed, constitute an unwarranted invasion of personal privacy.

            Notwithstanding the foregoing, as mentioned at the outset, Mr. Raucci has been the subject of a variety disclosures to the public.  In my view, the more that is disclosed to the public, by whatever means, less is the ability of the District to contend that disclosure would result in an unwarranted invasion of personal privacy.  Further, if and when claims against the District are initiated and litigation papers are filed with a court or the District, those records are accessible to the public.  Although the courts are not subject to the Freedom of Information Law [see, respectively, definitions of “judiciary” and “agency” in §86(1) and (3)], most records maintained by courts are accessible to the public under other statutes, such as Judiciary Law, §255).  Further, when records filed with a court are copied and served upon or maintained by an agency, such as the District, they are, according to the Court of Appeals, agency records, even though they may have emanated from a court [Newsday v. Empire State Development Corporation, 98 NY2d 359 (2002)].

            Lastly, that claims may be or have been initiated against the District is largely irrelevant.  As stated by the Court of Appeals in a decision 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 Civil Practice Law and Rules (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].

            I point out, too, that unless records are prepared solely for litigation, the exception in §3101(d) of the CPLR concerning material prepared for litigation cannot properly be asserted as a means of denying access.  When records are prepared for multiple purposes, one of which might include eventual use in litigation, it has been held that §3101(d) does not apply [Westchester-Rockland Newspapers v. Mosczydlowski, 58 AD2d 234 (1977)].  In the context of the instant situation, it is clear in my opinion that the report was not prepared solely for litigation.                   
Based upon the foregoing, the pendency of litigation would not, in my opinion, affect either the rights of the public or a litigant under the Freedom of Information Law.

            In sum, I believe that the blanket denial of access to the report by the District is inconsistent with law, and that to comply with law, District officials must review the report, in its entirety, to determine, in accordance with the preceding commentary and the direction provided by the courts, the extent to which its content must be disclosed.

            In an effort to enhance compliance with and understanding of the Freedom of Information Law, and to attempt to avoid litigation, a copy of this opinion will be sent to District officials.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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cc: Board of Education
Sal DeAngelo
Richard Yager
Eric D. Ely
Carl Strock
Michael Goot
Andrew Rose