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July 26, 1993

 

 

Mr. Shateek Bilal
#91-R-7460
Clinton Correctional Facility
Box 2001
Dannemora, N.Y. 12929

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. Bilal:

I have received your letter of July 18 in which you questioned
your right to obtain a copy of an employees rule book applicable to
employees of the Department of Correctional Services.

In this regard, as a general matter, the Freedom of
Information Law is based upon a presumption of access. Stated
differently, all record of an agency are available, except to the
extent that records or portions thereof fall within one or more of
the grounds for denial appearing in section 87(2)(a) through (i) of
the Law. I am unfamiliar with the contents of the manual in which
you are interested. However, from my perspective, three of the
grounds for denial may be relevant to your inquiry.

Specifically, section 87(2)(g) 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 basis
for denial is applicable. 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. It would appear that an employee manual would consist of
instructions to staff that affect the public or an agency's policy.
Therefore, I believe that it would be available, unless a different
basis for denial could be asserted.

A second provision of potential significance is section
87(2)(e), which permits an agency to withhold records that:

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

i. interfere with law enforcement
investigations of 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."

Under the circumstances, it appears that most relevant is section
87(2)(e)(iv). The leading decision concerning that provision is
Fink v. Lefkowitz, which involved access to a manual prepared by a
special prosecutor that investigated nursing homes, in which the
Court of Appeals held that:

"The purpose of this exemption is obvious.
Effective law enforcement demands that
violators of the law not be apprised the
nonroutine procedures by which an agency
obtains its information (see Frankel v.
Securities & Exch. Comm., 460 F2d 813, 817,
cert den 409 US 889). However beneficial its
thrust, the purpose of the Freedom of
Information Law is not to enable persons to
use agency records to frustrate pending or
threatened investigations nor to use that
information to construct a defense to impede a
prosecution.

"To be distinguished from agency records
compiled for law enforcement purposes which
illustrate investigative techniques, are those
which articulate the agency's understanding of
the rules and regulations it is empowered to
enforce. Records drafted by the body charged
with enforcement of a statute which merely
clarify procedural or substantive law must be
disclosed. Such information in the hands of
the public does not impede effective law
enforcement. On the contrary, such knowledge
actually encourages voluntary compliance with
the law by detailing the standards with which
a person is expected to comply, thus allowing
him to conform his conduct to those
requirements (see Stokes v. Brennan, 476 F2d
699, 702; Hawkes v. Internal Revenue Serv.,
467 F2d 787, 794-795; Davis, Administrative
Law [1970 Supp], section 3A, p 114).

"Indicative, but not necessarily dispositive
of whether investigative techniques are
nonroutine is whether disclosure of those
procedures would give rise to a substantial
likelihood that violators could evade
detection by deliberately tailoring their
conduct in anticipation of avenues of inquiry
to be pursued by agency personnel (see Cox v.
United States Dept. of Justice, 576 F2d 1302,
1307-1308; City of Concord v. Ambrose, 333 F
Supp 958). It is no secret that numbers on a
balance sheet can be made to do magical things
by scrupulous nursing home operators the path
that an audit is likely to take and alerting
them to items to which investigators are
instructed to pay particular attention, does
not encourage observance of the law. Rather,
release of such information actually
countenances fraud by enabling miscreants to
alter their books and activities to minimize
the possibility or being brought to task for
criminal activities. In such a case, the
procedures contained in an administrative
manual are, in a very real sense, compilations
of investigative techniques exempt from
disclosure. The Freedom of Information Law
was not enacted to furnish the safecracker
with the combination to the safe" (id. at
572-573).

In applying those criteria to specific portions of the manual,
which was compiled for law enforcement purposes, the Court found
that:

"Chapter V of the Special Prosecutor's Manual
provides a graphic illustration of the
confidential techniques used in a successful
nursing home prosecution. None of those
procedures are 'routine' in the sense of
fingerprinting or ballistic tests (see Senate
Report No. 93-1200, 93 Cong 2d Sess [1974]).
Rather, they constitute detailed, specialized
methods of conducting an investigation into
the activities of a specialized industry in
which voluntary compliance with the law has
been less then exemplary.

"Disclosure of the techniques enumerated in
those pages would enable an operator to tailor
his activities in such a way as to
significantly diminish the likelihood of a
successful prosecution. The information
detailed on pages 481 and 482 of the manual,
on the other hand, is merely a recitation of
the obvious: that auditors should pay
particular attention to requests by nursing
homes for Medicaid reimbursement rate
increases based upon projected increase in
cost. As this is simply a routine technique
that would be used in any audit, there is no
reason why these pages should not be
disclosed" (id. at 573).

While I am unfamiliar with the record in question, it would
appear that those portions which, if disclosed, would enable
potential lawbreakers to evade detection could likely be withheld.
It is noted that in another decision which dealt with a request for
certain regulations of the State Police, the Court of Appeals found
that some aspects of the regulations were non-routine, and that
disclosure could "allow miscreants to tailor their activities to
evade detection" [De Zimm v. Connelie, 64 NY 2d 860 (1985)].
Nevertheless, other portions of the records might be "routine" and
might not if disclosed preclude employees from carrying out their
duties effectively.

Lastly, the remaining ground for denial of possible relevance
is section 87(2)(f). That provision permits an agency to withhold
records when disclosure "would endanger the life of safety of any
person." To the extent that disclosure would endanger the life of
safety of correction officers or others, it appears that section
87(2)(f) would be applicable.

In sum, while some aspects of the manual might be deniable,
others must in my opinion be disclosed in conjunction with the
preceding commentary.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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