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June 24, 1993

 

 

Hon. Donna L. Conlin
Town Clerk
Town of Schodack
1777 Columbia Turnpike
Castleton, NY 12033

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 Ms. Conlin:

I have received your letter of June 10 in which you requested
an advisory opinion concerning access to "citizens complaints
regarding zoning and building issues." It is your view that you
cannot release the complainants' identities based upon either
§87(2)(b) or (e)(iii) of the Freedom of Information Law.

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.

When a complaint is made to an agency, as you suggested,
§87(2)(b) of the Freedom of Information Law is often relevant.
That provision permits an agency to withhold records to the extent
that disclosure would constitute "an unwarranted invasion of
personal privacy."

With respect to such complaints, it has generally been advised
that the substance of a complaint is available, but that those
portions of the complaint which identify complainants may be
deleted on the ground that disclosure would result in an
unwarranted invasion of personal privacy. I 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 my view, 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 the person who made the complaint is often
irrelevant to the work of the agency, and in such circumstances, I
believe that identifying details may be deleted.

Second, although §87(2)(b) may be applicable, it is unlikely
in my view that §87(2)(e)(iii) could be asserted to withhold
complainants' identities. That provision permits an agency to
withhold records that:

"are complied for law enforcement purposes and
which, if disclosed would...identify a
confidential source or disclose confidential
information relating to a criminal
investigation."

It is unlikely that a complaint would relate to a criminal
investigation. I point out, too, that it had been claimed under
the Freedom of Information Law as originally enacted that building
code inspection records could be withheld on the ground that they
involved investigatory files compiled for law enforcement purposes.
Nevertheless, in one of the first decisions rendered under the Law,
which at the time was not as expansive in terms of rights of access
as the current statute, it was held that the files of a building
code enforcement agency did not fall within the exception
concerning law enforcement records [see Young v. Town of
Huntington, 388 NYS 2d 978 (1976)].

Lastly, since you expressed the view that you "cannot release
the complainant's identity", it is noted that the Freedom of
Information Law is permissive. While an agency may withhold
records in appropriate circumstances, it is not required to do so.
As stated by the Court of Appeals:

"while an agency is permitted to restrict
access to those records falling which the
statutory exemptions, the language of the
exemption provision contains permissible
rather than mandatory language, and it is
within the agency's discretion to disclose
such records, with or without identifying
details, if it so chooses" [Capital Newspapers
v. Burns, 67 NY 2d 562, 567 (1986)].

Therefore, while I believe that identifying details pertaining to
complainants may ordinarily be withheld, an agency is not
prohibited from disclosing the records in question in their
entirety.

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

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