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February 11, 1993

 

 

Mr. Charles Millson
81-D-0019
135 State Street
Auburn, N.Y. 13021

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. Millson:

I have received your letter of January 21, as well as the
materials attached to it.

You have raised the following questions concerning the Freedom
of Information Law:

"1. Can a person designate another person to
act as his agent in pursuing a F.O.I.L.
request and obtaining documents?

2. Can a person have access to the District
Attorneys' files in pursuing their own
F.O.I.L. request as long as they have the
permission of the defendant in that action?

3. As noted in 1 & 2, can a denial by a
District Attorney be legal simply because he
demands the request be done in a particular
way by a particular person?

4. Can an agency deny a F.O.I.L. request for
records known to be in the agencys' possession
on the basis that another agency may also have
copies of the records being requested?"

In this regard, I offer the following comments.

First, as a general matter, any person may seek records under
the Freedom of Information Law. Further, it has been held that
when records are accessible under the Freedom of Information Law,
they must be made equally available to any person, without regard
to one's status or interest [see e.g., Burke v. Yudelson, 51 AD 2d
673 (1976); Farbman v. New York City, 62 NY 2d 75 (1984)].
However, in some circumstances, records may be available under the
Freedom of Information Law only to the subject of the records. If,
for example, a record pertains to a particular individual, it may
be available to that person, but disclosure might constitute "an
unwarranted invasion of personal property" [see Freedom of
Information Law, §87(2)(b)] if disclosed to others. In such a
circumstance, I believe that the subject of a record may authorize
another person to seek and obtain the records on his or her behalf.
As stated in §89(2)(c), unless a different ground for denial would
apply, "disclosure shall not be construed to constitute an
unwarranted invasion of personal property...when the person to whom
a record pertains consents in writing to disclosure". Therefore,
assuming that records would be available to you under the Freedom
of Information Law, you could provide written consent to disclose
the records to a person acting on your behalf.

Second, with respect to a demand that a request "be done in a
particular way", §89(3) of the Freedom of Information Law states in
part that an agency must respond to a "written request for a record
reasonably described". Therefore, an agency may require that a
request be made in writing and that the request must contain
sufficient detail to enable agency officials to locate and identify
the records sought.

Third, I do not believe that an agency may deny a request for
records solely on the basis that another agency possesses copies of
the same record. It is noted that §86(4) of the Freedom of
Information Law defines the term "record" to mean:

"any information kept, held, filed, produced
or reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Further, §87(2) requires that agencies disclose records to the
extent required by law. Therefore, in my view, if a record is
"kept, held [or] filed" by an agency, the agency would be obliged
to respond to a request for the record by granting or denying
access in accordance with §87(2), even though duplicates of the
same record may be maintained by another agency. Moreover, in some
instances, when copies of records are maintained by two or more
agencies, one might have the ability to retrieve the record
quickly; another might have to engage in more significant or time
consuming search techniques.

Lastly, as suggested above, 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 section 87(2)(a) through (i) of the Law.
Although I am not familiar with the contents of the records which
you are interested, the following paragraphs will review the
grounds for denial that may be relevant.

The initial ground for denial, §87(2)(a), pertains to records
that "are specifically exempted from disclosure by state or federal
statute". One such statute is §422 of the Social Services Law.
However, it appears that you received an order of disclosure
regarding the records subject to that statute.

Perhaps most important in relation to records pertinent to a
law enforcement investigation is §87(2)(e) of the Freedom of
Information Law. That provision permits an agency to withhold
records that:

"are compiled for law enforcement purposes and
which, if disclosed, would:

i. interfere with law enforcement
investigations or judicial proceedings;

ii. deprive a person of a right to a fair
trial or impartial adjudication;

iii" identify a confidential source or
disclose confidential information relating to
a criminal investigation; or

iv. reveal criminal investigative techniques
or procedures, except routine techniques and
procedures."

It is emphasized that not all records used, reviewed or relevant to
an investigation might have been compiled for law enforcement
purposes; some might have been prepared in the ordinary course of
business, in which case, §87(2)(e) would not apply. To the extent
that the records in question were compiled for law enforcement
purposes, an agency may withhold them only to the extent that the
harmful effects described in subparagraphs (i) through (iv) of
§87(2)(e) would arise by means of disclosure. Moreover, to qualify
as a confidential source, it has been held that an individual must
have been given a promise of confidentiality. In a case involving
records maintained by the New York City Police Department relating
to a sexual assault, it was held that:

"NYPD has failed to meet its burden to
establish that the material sought is exempt
from disclosure. While NYPD has invoked a
number of exemptions with might justify its
failure to supply the requested information,
it has failed to specify with particularity
the basis for its refusal...

"As to the concern for the privacy of the
witnesses to the assault, NYPD has not alleged
that anyone was promised confidentiality in
exchange for his cooperation in the
investigation so as to qualify as a
'confidential source' within the meaning of
the statute (Public Officers Law
§87[2][e][iii]" [Cornell University v. City of
New York Police Department, 153 AD 2d 515, 517
(1989); motion for leave to appeal denied, 72
NY 2d 707 (1990); see also, Laureano v.
Grimes, 579 NYS 2d 357, ___ AD 2d ___ (1992)].

There is no indication in your correspondence that disclosure would
reveal non-routine criminal investigative techniques or procedures.
In short, I believe that the ability to assert §87(2)(e) as a basis
for denial, particularly after an investigation has been closed, is
limited.

Also of potential significance is §87(2)(b), which authorizes
an agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy". Since I
am unfamiliar with the contents of the records, it is unclear
whether that provision may be applicable. However, where
appropriate, names or other identifying details could be deleted
from records that would otherwise be available to protect against
unwarranted invasions of personal privacy [see Freedom of
Information Law, §89(2)(a)].

The remaining ground for denial of possible relevance is
§87(2)(g), which enables 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.

As in the case of provisions discussed earlier, the contents
of materials falling within the scope of section 87(2)(g) represent
the factors in determining the extent to which inter-agency or
intra-agency materials must be disclosed or may be withheld. For
example, in Ingram v. Axelrod, the Appellate Division held that:

"Respondent, while admitting that the report
contains factual data, contends that such data
is so intertwined with subject analysis and
opinion as to make the entire report exempt.
After reviewing the report in camera and
applying to it the above statutory and
regulatory criteria, we find that Special Term
correctly held pages 3-5 ('Chronology of
Events' and 'Analysis of the Records') to be
disclosable. These pages are clearly a
'collection of statements of objective
information logically arranged and reflecting
objective reality'. (10 NYCRR 50.2[b]).
Additionally, pages 7-11 (ambulance records,
list of interviews) should be disclosed as
'factual data'. They also contain factual
information upon which the agency relies
(Matter of Miracle Mile Assoc. v Yudelson,
68 AD2d 176, 181 mot for lve to app den 48
NY2d 706). Respondents erroneously claim that
an agency record necessarily is exempt if both
factual data and opinion are intertwined in
it; we have held that '[t]he mere fact that
some of the data might be an estimate or a
recommendation does not convert it into an
expression of opinion' (Matter of Polansky v
Regan, 81 AD2d 102, 104; emphasis added).
Regardless, in the instant situation, we find
these pages to be strictly factual and thus
clearly disclosable" [90 AD 2d 568, 569
(1982)].

Similarly, the Court of Appeals has specified that the
contents of intra-agency materials determine the extent to which
they may be available or withheld, for it was held that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" (id. at 133).

In short, even though statistical or factual information may be
"intertwined" with opinions, the statistical or factual portions,
if any, as well as any policy or determinations, would be
available, unless a different ground for denial could properly be
asserted.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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