FOIL AO 19715

VIA EMAIL

From:                      Freeman, Robert J (DOS)
Sent:                       Friday, March 08, 2019 12:45 PM
To:
Subject:                  Investigation of PTA


Dear :

You referred to a request for "public PTA financial records", and after those requests were made, "an investigation ensued regarding their finances." The New York City Department of Education (DOE) withheld the records based on §87(2)(e)(i) of the Freedom of Information Law (FOIL). You added that "the PTA is giving [you] records directly…"

I must admit that I am unfamiliar with the facts regarding the information that you offered. However, I offer the following brief remarks.

First, a PTA is not an "agency" as that term is defined in §86(3) of FOIL, and its records are not subject to rights conferred by FOIL.  However, any records relating to a PTA that are maintained by a government agency, such as DOE, fall within the coverage of FOIL.

Second, you have questioned the ability of the DOE to deny access to records based on §87(2)(e) concerning records "compiled for law enforcement purposes." In this regard, it has been held that the term "enforcement" may apply to both civil and criminal law enforcement, and that "limiting the phrase ‘law enforcement purposes' to criminal investigations could severely hamper the important responsibilities of administrative agencies and the New York State Attorney General to enforce civil law and administrative regulations, so many of which can be crucial to the health, safety and well being of the State and its citizens" [Pride International Realty LLC v Daniels, 791 NYS2d 873 (2004)].

That records might be characterized as having been compiled for law enforcement purposes does not serve to end the analysis. The ability to deny access to records of that nature is dependent on the effects of disclosure and limited to instances in which disclosure would interfere with a law enforcement investigation or judicial proceeding, deprive a person of a right to a fair trial, identify a confidential source or reveal other than routine criminal investigative techniques or procedures. Moreover, when an agency denies access following an appeal, and the agency’s determination is challenged in a judicial proceeding, the agency has the burden of proof, i.e., it must demonstrate that disclosure would in fact "interfere" with a law enforcement investigation.

Finally, you wrote that the PTA has disclosed records to you directly. I am unaware of the nature of the records supplied to you. However, if they are records that relate to DOE’s investigation, it is questionable whether or the extent to which DOE may justifiably assert the exception cited in response to your request.

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State One Commerce Plaza 99 Washington Avenue
Albany, NY 12231
(518)474-2518 (p)
(518)474-1927 (f)
robert.freeman@dos.ny.gov
www.dos.ny.gov/coog