November 3, 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 letter in which you complained that, as the date of your letter to this office, your requests directed various entities had not been answered. You have also been denied access to “copies of transcripts of Parole Board Release Interviews” concerning another person by the NYS Division of Parole.
In this regard, I offer the following comments.
First, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, which shall be reasonable in consideration of the circumstanced relating to the request and shall not exceed twenty business days from the date of such acknowledgment, except in unusual circumstances. In the event that such unusual circumstances prevent the grant or denial of the request within twenty business days, the agency shall state in writing both the reason for the inability to do so and a date certain within a reasonable time, based on such unusual circumstances, when the request shall be granted or denied.”
If neither a response to a request nor an acknowledgment of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgment, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:
"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.
With respect to your request for “parole hearing interview transcripts” concerning other people, from my perspective, it is likely that the primary issue in terms of rights of access involves the extent to which disclosure would constitute "an unwarranted invasion of personal privacy" with respect to both the inmate and perhaps others, such as those associated with the victims.
As a general matter, 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. Section 87(2)(b) enables an agency to withhold records insofar as disclosure would result in an unwarranted invasion of personal privacy. While that standard is not defined, §89(2)(b) provides a series of examples of such invasions of privacy.
Also relevant is the Personal Privacy Protection Law, which deals in part with the disclosure of records or personal information by agencies concerning data subjects. A "data subject" is "any natural person about whom personal information has been collected by an agency" [Personal Privacy Protection Law, §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 that statute, 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)].
With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No agency may disclose any record or personal information", except in conjunction with a series of exceptions that follow. One of those exceptions involves when a record is "subject to article six of this chapter [the Freedom of Information Law], unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter". It is noted, too, that §89(2-a) of the Freedom of Information Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision two of this section if such disclosure is prohibited under section ninety-six of this chapter". Therefore, if a state agency cannot disclose records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the Freedom of Information Law.
Section 96(1) of the Personal Privacy Protection Law limits the circumstances under which state agency may disclose personally identifiable information. The only provision in my opinion that would permit the Division of Parole to disclose information identifiable to an inmate would involve §96(1)(c), which authorizes disclosure when personal information is available under the Freedom of Information Law, i.e., when disclosure would not constitute an unwarranted invasion of personal privacy.
While I am unfamiliar with the contents of the transcripts, information regarding the inmate's medical or mental condition, for example, would in my view constitute an unwarranted invasion of personal privacy if disclosed [see Freedom of Information Law, §89(2)(b)(i) and (ii)]. There may be other intimate details concerning the inmate that could be withheld in accordance with the privacy provisions.
Those provisions would also be applicable with respect to references to victims, their families and others affected by a crime. The extent to which they would apply would in my opinion be dependent on the specific nature of the information.
Also of potential significance is §87(2)(g), which 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 my view be withheld.
If, for example, a district attorney offered an opinion or recommendation to the Parole Board concerning the possibility of parole, the portions of the transcript reflective of that kind of advice or opinion could in my view be withheld under §87(2)(g).
With respect to parole board decisions, I believe that they would constitute final agency determinations that would be accessible under §87(2)(g)(iii).
I hope that I have been of assistance.
Robert J. Freeman