July 19, 2013
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.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the City of New York Department of Investigation. Specifically, you requested records related to a complaint you made regarding possible fraudulent filings for the NYC High Pressure Boiler Operator Exam. In response, and on appeal, the City denied access to any such records on grounds that disclosure would constitute an unwarranted invasion of personal privacy, that materials were compiled for law enforcement purposes and disclosure would identify confidential sources or confidential information related to a criminal investigation, and that the records in question are inter or intra-agency materials that do not contain any of the items requiring disclosure.
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 (l) of the Law. It is emphasized that the introductory language of §87(2) provides all records are available, except "records or portions thereof" that fall within the grounds for denial of access that follow. The phrase quoted in the preceding sentence indicates that situations may arise in which a single record includes both accessible and deniable information, and that an agency is obliged to review records sought, in their entirety, to determine which portions, if any, may justifiably be withheld.
The Court of Appeals reiterated its general view of the intent of the Freedom of Information Law in Gould, 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[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)” (Gould v. New York City Police Dept., 653 N.Y.S.2d 54, 89 N.Y.2d 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 Department contended that certain records could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), one of the exceptions referenced in response to the request at issue. 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 Department appears to have engaged in a blanket denial by relying on multiple provisions in a manner which, in our view, is equally inappropriate. We are not suggesting that the record or records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, any such records must be reviewed by the Department for the purpose of identifying those portions that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).
As indicated by the Department, citing Daily News v Giuliani (New York County Supreme Court, April 21, 1997), when an agency receives and investigates a complaint, and the investigation results in no action taken by the agency, this will confirm that the agency has authority to withhold records insofar as they reflect matters that if disclosed would constitute an unwarranted invasion of personal privacy (§87[b]), records compiled for law enforcement purposes that would, if disclosed, identify confidential sources or information (§87[e]), and inter or intra agency materials, insofar as they consist of opinions, advice and or recommendations (§87[g]).
With respect to those records that were created during the normal course of business and not generated in response to the complaint but are nevertheless responsive to the request, however, it is likely that portions must be made available. For example, we note that the City’s online application to become a licensed high pressure boiler operating engineer includes space for “qualifying employment experience”, and the accompanying guidelines indicate that an applicant must have certain prescribed “levels of experience” pursuant to the NYC Administrative Code. It is our opinion that applications submitted by those who hold current operating engineer licenses such as the persons that you named, would be required to be released, insofar as they contain information related to such mandatory qualifications.
It has consistently been advised that licenses and similar, related kinds of records are available to the public, even though they identify particular individuals. From our perspective, various activities are licensed due to a public interest in ensuring that individuals or entities are qualified to engage in certain activities, such as teaching, selling real estate, practicing law or medicine, etc., as well as operating high pressure boilers. We believe that licenses and similar records should be made available, for they enable the public to know that an individual has met appropriate requirements to be engaged in an activity that is regulated by the government or in which the government has a significant interest.
The standard in the Freedom of Information Law pertaining to the protection of privacy in our opinion is flexible and agency officials must, in some instances, make subjective judgments when issues of privacy arise. However, it is clear that not every item within a record that identifies an individual may be withheld. Disclosure of intimate details of peoples' lives, such as medical information, one's private employment history and the like, might, if disclosed, constitute an unwarranted invasion of personal privacy; nevertheless, other types of personal information maintained by an agency, particularly those types of information that are relevant to an agency's duties, would if disclosed often result in a permissible rather than an unwarranted invasion of personal privacy.
In this instance, at a minimum, applications of the named individuals should be made available, including qualifications required to obtain the licenses, for disclosure would, in our opinion result in a permissible rather than an unwarranted invasion of personal privacy.
Camille S. Jobin-Davis