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February 26, 1993

Mr. David Lewis
Staff Writer
Gannett Suburban Newspapers
1 Gannett Drive
White Plains, NY 10604

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. Lewis:

I have received your letter of February 15 in which you
requested an advisory opinion concerning the Freedom of Information
Law.

According to the correspondence attached to your letter, you
sought from the Executive Chamber "any and all public documents on
the application for executive clemency and parole by Jean S.
Harris". In response to the request, you were provided access to
the certificate issued by the Governor that granted clemency.
However, other records falling within the scope of your request
were denied pursuant to §87(2)(g) of the Freedom of Information Law
on the ground that they constitute "intra-agency materials". Your
appeal was denied on the same basis, and you questioned the
propriety of the denial.

In this regard, I offer the following comments.

First, 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 section 87(2)(a) through (i) of the Law.

I am unaware of any judicial decision that has considered
public rights of access to clemency applications. However, in a
decision that dealt with a register required to be maintained
pursuant to §5(3) of the Executive Law, the court specified that
"[t]he issue of precisely what portions of a clemency application
may fall within the penumbra of the exceptions to FOIL is beyond
the scope of the proceeding" [Rold v. Cuomo, Supreme Court, Albany
County, May 31, 1988]. In my view, the court inferred that
clemency applications may be accessible or deniable, in whole or in
part, depending upon their contents, in accordance with the grounds
for denial.

Second, insofar as the records sought were furnished to the
Governor or his representatives by Ms. Harris, her attorney or
other persons outside of government, I do not believe that
§87(2)(g) would serve as a basis for denial. Section 86(3) of the
Freedom of Information Law defines the term "agency" to mean:

"any state or municipal department, board,
bureau, division, commission, committee,
public authority, public corporation, council,
office or other governmental entity performing
a governmental or proprietary function for the
state or any one or more municipalities
thereof, except the judiciary or the state
legislature."

While I believe that communications between or among agency
officials or those prepared and transmitted by officials within an
agency would fall within the scope of §87(2)(g), those transmitted
to an agency, i.e., the Executive Chamber, from a person outside of
government and who is not an officer or employee of an agency could
not in my view be characterized as inter-agency or intra-agency
materials. Such a person or entity would not be employed by or be
an agency; consequently, in my opinion, a communication from that
person or entity would be neither inter-agency nor intra-agency
material.

Third, related to the application may be letters or memoranda
prepared by agency officials, such as those employed at a
correctional facility, by the Division of Parole, a district
attorney, or others. Those kinds of records would in my opinion
fall within the coverage of §87(2)(g). That provision states that
an agency may 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, however,
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. Therefore, if, for example a superintendent
of a correctional facility provides an opinion to the Governor or
his representatives concerning an application for clemency, that
kind of record would clearly fall within the exception.

Lastly, most significant in my opinion is §87(2)(b), which
authorizes an agency to withhold records or portions thereof which
"if disclosed would constitute an unwarranted invasion of personal
privacy under the provisions of subdivision two of section eighty-nine of this article." You pointed out in your appeal that a
variety of information pertaining to Ms. Harris has been widely
publicized and disclosed by her, and you suggested that "these
facts imply a substantial waiver of her right to privacy in this
case..." From my perspective, notwithstanding your suggestion, a
state agency is obliged to comply with the Freedom of Information
Law, as well as the Personal Privacy Protection Law.

With respect to the Freedom of Information Law, §89(2)(b)
includes a series of examples of unwarranted invasions of personal
privacy. Although those examples may not be specifically
pertinent, I believe that they represent few among many conceivable
unwarranted invasions of privacy. In my opinion, a clemency
application, and perhaps related documentation, would likely
constitute an unwarranted invasion of personal privacy if
disclosed. That would be particularly so in this instance if the
materials contain information regarding Ms. Harris' medical
condition.

With respect to the Personal Privacy Protection Law, §96(1) of
that statute precludes a state agency from disclosing personal
information about a "data subject", unless disclosure is permitted
pursuant to exceptions authorizing disclosure that appear in the
ensuing portions of that provision. A "data subject" is "any
natural person about whom personal information has been collected
by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal
information" is defined to mean "any information concerning a data
subject which, because of name, number, symbol, mark or other
identifier, can be used to identify that data subject" [§92(7)].
For purposes of the Personal Privacy Protection Law, the term
"record" is defined to mean "any item, collection or grouping of
personal information about a data subject which is maintained and
is retrievable by use of the name or other identifier of the data
subject" [§92(9)].

Section 96(1) provides in relevant part that:

"No agency may disclose any record or personal
information unless such disclosure is:

(a) pursuant to a written request by or
the voluntary written consent of the
data subject, provided that such
request or consent by its terms
limits and specifically describes:
(i) the personal information which
is requested to be disclosed;
(ii) the person or entity to whom
such personal information is
requested to be disclosed; and
(iii) the uses which will be made
of such personal information by the
person or entity receiving it."

Similarly, §89(2)(c) of the Freedom of Information Law states that,
unless a different ground for denial applies, "disclosure shall not
be construed to constitute an unwarranted invasion of personal
privacy...when the person to whom a record pertains consents in
writing to disclosure."

Further, §89(2-a) of the Freedom of Information Law states
that:

"Nothing in this article [the Freedom of
Information Law] shall permit disclosure which
constitutes an unwarranted invasion of
personal privacy as defined in subdivision two
of this section if such disclosure is
prohibited under section ninety-six of this
chapter."

As such, when the Freedom of Information Law and the Personal
Privacy Protection Law are read in conjunction with one another, a
state agency cannot release records when disclosure would result in
an unwarranted invasion of personal privacy, unless disclosure is
otherwise permitted by §96. Therefore, assuming that disclosure
would constitute an unwarranted invasion of personal privacy, and
I believe that it would, in order to acquire the records, consent
to disclose by Ms. Harris as described in §96(1)(a) would be needed
to obtain them.

In sum, while I disagree in part with the basis for
withholding offered in response to your request and appeal, I
believe that the records in question could only be disclosed only
if Ms. Harris so consents as described in the previous commentary.
I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm
cc: Elizabeth D. Moore, Counsel to the Governor
Eileen D. Chang, Assistant Counsel to the Governor
and Records Access Officer