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FOIL-AO-18986                                                           November 13, 2012

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TO:       
FROM:  Camille S. Jobin-Davis, Assistant 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 facts presented in your correspondence.

Dear Mr.:

This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the New York City Department of Buildings (the “Department”).  Specifically, your request for access to structural drawings for the original World Trade Center Building 7 (which no longer exists), a list of buildings designated by the New York City Police Department as “sensitive”, protocols (policies and procedures) for the “sensitive buildings” program, statutory authority for the “sensitive buildings” program, and any “copyright agreements between the [Department] and the owners of buildings applying for sensitive building status” have been denied based on various exceptions within the Law, and on the ground that no such records exist.

Based on the explanation offered in the Department’s denial and information provided to this office previously (see FOIL-AO-17747, enclosed), it is our understanding that when an applicant seeks records related to a building that has been designated “sensitive”, the applicant is required to fill out Supplemental Records Request Form ADM-73, and obtain written, notarized permission from the owner of the building in order to obtain access to the documents.  Without permission, access to records related to the building is denied.  The list of “sensitive buildings” (the “List”) was compiled by the Police Department, based on an assessment of the terrorist risk level of New York City structures.

Initially, in response to your request for structural design drawings related to the original WTC Building 7, which was destroyed on September 11, 2001, you were informed that the drawings would not be provided due to status of the building as “sensitive”.  On appeal, you were informed that no such records exist and directed to forward your request to the Port Authority of New York and New Jersey, which was responsible for ensuring compliance with the building code.

Subsequently, you were denied access to records documenting “guidelines and instructions for the form ADM-73”, on the ground that such records did not constitute “instructions to staff that affect the public” (§87[2][g][ii]), and a copy of the List itself, pursuant to §87(2)(f), commonly known as the public safety exception, “because it has been determined the List constitutes security sensitive location information regarding New York City structures and infrastructures and therefore cannot be disclosed under FOIL.”

Documentation previously forwarded to this office, 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 one 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 our 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, we do not believe that the content of the List that you have requested may justifiably be characterized as secret.

With respect to the law, we 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. Like the Department, we are 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 focus of the courts in 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 our view, overly broad and largely unenforceable.  By means of example, the Hudson River is clearly visible from many buildings and bridges in the Capital District area, and Reservoir Road is likely close to a reservoir.  Maps that can be purchased at any number of locations, and various digital mapping applications make information of that nature freely available online.  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.

We 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 we 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 at their homes; 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, we 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.”  

With respect to materials documenting internal guidelines or policies for the application process, we note a separate exception is also pertinent to an analysis of rights of access. That provision, however, due to its structure, often requires disclosure.

Specifically, §87(2)(g) permits an agency provide in pertinent part 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.

There is little decisional law that deals directly with subparagraph (ii). Typically, agency guidelines, procedures, staff manuals and the like provide direction to an agency’s employees regarding the means by which they must perform their duties. Some may be “internal”, in that they deal solely with the relationship between an agency and its staff. Others may provide direction in terms of the manner in which staff performs its duties in relation to or that affects the public, which would ordinarily be accessible. To be distinguished would be advice, opinions or recommendations that may be accepted or rejected. An instruction to staff, a policy or a determination, each would represent a matter that is mandatory or directory in nature that would in our view be accessible pursuant to §87(2)(g)(ii).

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.

Enclosure

c: Janine Gaylard, Esq., Assistant General Counsel, NYC Department of Buildings