September 20, 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 Town of Oyster Bay. Specifically, you made a request for various documents including records of complaints pertaining to your property, applicable rules and regulations, notices of parking violations and notices of residential fence violations. In response, the Town denied access to various documents and indicated that it required approximately two months to respond to the requests for copies of violations. On appeal, the Town affirmed the denial of access and indicated that the town clerk would provide further information regarding the costs involved in producing the records determined to be available. By request dated June 21, 2013, you submitted an additional request for records from the Town, and although you have been provided with some of the records requested, the response was incomplete.
In this regard, we note first that 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.
The introductory language of §87(2) refers to the ability to withhold “records or portions thereof” that fall within the grounds for denial that follow. This phrase indicates that there may be instances in which a single record includes both accessible and deniable information, and that an agency is required to review a record that has been requested to determine which portions, if any, may properly be withheld.
The exception to rights of access of primary significance, in our view, pertains to the protection of privacy, and §87(2)(b) permits an agency to deny access to records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” It has consistently been advised that those portions of a complaint or other record which identify complainants may be deleted on the ground that disclosure would result in an unwarranted invasion of personal privacy. We point out that §89(2)(b) states that an "agency may delete identifying details when it makes records available." Further, the same provision contains five examples of unwarranted invasions of personal privacy, the last two of which include:
"iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or
v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."
In our opinion, what is relevant to the work of the agency is the substance of the complaint, i.e., whether or not the complaint has merit. The identity of a member of the person who made the complaint is often irrelevant to the work of the agency, and in most circumstances, we believe that identifying details may be deleted.
To the extent that an agency has denied access to a record on the ground that the record is compiled for law enforcement purposes and disclosure would interfere with an ongoing investigation or judicial proceeding, it is likely that the record should be disclosed when judicial proceedings are concluded, subject to any further exceptions that may apply.
Next, we note the Town’s response to your request for rules and regulations that apply in certain circumstances. It is the opinion of this office that a request for a law that may applicable might not be viewed as a request for a record, but rather an interpretation of law that requires a judgment. Depending on the nature of the matter, any number of provisions might be applicable, and a disclosure of some of them, based on one's knowledge, may be incomplete due to an absence of expertise regarding the content and interpretation of each such law. Further, two people, even or perhaps especially two attorneys, might differ as to the applicability of a given provision of law. In contrast, if a request is made, for example, for "section 10 of the Town Code", no interpretation or judgment is necessary, for sections of the law appear numerically and can readily be identified. That kind of request, in our opinion would involve a portion of a record that must be disclosed. Again, a request for laws that might be applicable is not, in our view, a request for a record as envisioned by the Freedom of Information Law.
With respect to the town’s request for a $1,920.00 payment prior to providing copies of all notices of violations and summonses issued in the past year for trailers or boats parked illegally (request #6), we note that the Freedom of Information Law was amended in 2008 to provide a fee structure for access to those records that are maintained in a medium other than paper less than 9x14 inches (§87). These types of fees apply to electronic or digitally maintained records. This provision requires the agency to inform the applicant of the estimated cost of preparing the non-paper record, should it require more than two hours of an employee’s time (§87[c][iv]). If the records that you have requested are maintained electronically and if it would take two hours or more to prepare the records, the agency would have authority to charge the salary of the lowest paid employee capable of performing the work. There would be no per page fee if the above described fee applies.
Due to the nature of the fees permitted by §87(1)(c), it is our opinion that the agency should respond in writing, as indicated by the Appeals Officer, describing the basis for the estimated fee, which is set forth as both $1,920 and $.25 per page. When an agency conditions disclosure upon the prepayment of fees, it has the burden of articulating a particularized and specific justification for those fees. Weslowski v.Vanderhoef, 98 AD2d 1123, 1129, 95 NYS2d 538 (2d Dept. 2012). If the agency fails to respond in a reasonable manner, it is our opinion that such failure could be construed as a denial and constitute grounds for an appeal.
Finally, when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” It is emphasized that when a certification is requested, an agency “shall” prepare the certification; it is obliged to do so.
We hope this is helpful.
Camille S. Jobin-Davis
cc: Town Clerk, Town of Oyster Bay
Town Hall East
54 Audrey Ave.
Oyster Bay, NY 11758