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October 19, 1993

 

 

John D. Chestara, Counsel
Board of Hudson River-Black River
Regulating District
350 Northern Boulevard
Albany, NY 12204

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. Chestara:

As you are aware, I have received your letter of September 2
and related correspondence. Please accept my apologies for the
delay in response.

In your capacity as Counsel to the Hudson River-Black River
Regulating District (the District), you have sought an advisory
opinion concerning a request made in August by Tim O'Brien of the
Times Union for correspondence between the District and the New
York State Ethics Commission (the Commission). Michael Cleary,
Administrative Associate for the District, responded to Mr.
O'Brien, stating that "there are no such records other than routine
correspondence" and added that:

"Inasmuchas [sic] certain information
maintained by the Ethics Commission is
personal and confidential in nature, we would
respond by indicating that copies of all such
records are on file with the Ethics
Commission, and would refer your request to
the Ethics Commission that can properly decide
which correspondence is confidential according
to the Ethics Law, and which is not."

Having received Mr. Cleary's response, Mr. O'Brien referred to the
admission that the District maintains routine correspondence
falling with the scope of his request, renewed that request and
contended that "the law makes no provision for an agency to refer
a request to another agency." In addition, he indicated that the
response failed to indicate the reasons for a denial of access or
the name of the person or body to whom an appeal could be made.

Subsequently, on September 2, Mr. O'Brien appealed, and the
appeal was referred to your attention. Although you acknowledged
the principles inherent in the Freedom of Information Law, you
wrote that, in response to Mr. O'Brien's original request, the
District referred him to the "Commission itself in that the Ethics
Commission would be better able to determine which records are
accessible and which records may be shielded pursuant to the New
York State Ethics Law itself", for "[i]t was felt the Ethics
Commission was better able to make that determination than [y]our
agency." Prior to your determination, however, you forwarded Mr.
O'Brien's correspondence with the District to me for the purpose of
seeking an advisory opinion.

In this regard, I offer the following comments.

First, while I appreciate your interest in complying with the
Freedom of Information Law and seeking the advice of this office,
I do not believe that a request for an advisory opinion relieves
the District of its responsibility to comply with the time
limitation imposed by §89(4)(a) of the Freedom of Information Law
concerning the issuance of a determination following an appeal,
unless the appellant has waived adherence to that limitation. The
cited provision states in relevant part that:

"...any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive or
governing body of the entity, or the person
thereof designated by such head, chief
executive, or governing body, who shall within
ten business days of the receipt of such
appeal fully explain in writing to the person
requesting the record the reasons for further
denial, or provide access to the record
sought."

Moreover, as you are aware, the function of the Committee in
providing opinions is purely advisory, the Committee has no
authority to review records in camera or otherwise, and there is no
indication in your correspondence of the precise nature of the
records at issue.

Second, in conjunction with the definitions of "agency" and
"record" appearing respectively in subdivisions (3) and (4) of §86
of the Freedom of Information Law, any documentation maintained by
the District would constitute an agency record subject to rights of
access, and it is my view that the District is required to disclose
its records to the extent required by the Freedom of Information
Law. Certainly representatives of the District may consult or
confer with representatives of other agencies prior to granting or
denying access to records; nevertheless, I believe that it is the
District's responsibility to grant or deny access to its records
and that it would be inappropriate to transfer a request for its
records to another agency.

Further, while the District in my opinion is clearly subject
to the requirements of the Freedom of Information Law, the State
Ethics Commission and its records are excluded from the coverage of
that statute. Section 94(17)(a) of the Executive Law states that:

"Notwithstanding the provisions of article six
of the public officers law, the only records
of the commission which shall be available for
public inspection are:

(1) the information set forth in an
annual statement of financial
disclosure filed pursuant to section
seventy-three-a of the public
officers law except the categories
of value or amount, which shall
remain confidential, and any other
item of information deleted pursuant
to paragraph (h) of subdivision nine
of this section;

(2) notices of delinquency sent
under subdivision eleven of this
section;

(3) notices of reasonable cause
sent under paragraph (b) of
subdivision twelve of this section;
and

(4) notices of civil assessments imposed
under this section."

While it appears unlikely that the correspondence requested by Mr.
O'Brien would fall within the four categories of records available
from the Commission under the language quoted above, it is possible
that some aspects of correspondence may be available from the
District under the Freedom of Information Law.

Third, since the District is an agency required to comply with
the Freedom of Information Law, I point out as a general matter
that 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 §87(2)(a)
through (i) of the Law.

While I am unfamiliar with the contents of the documentation
falling within the scope of Mr. O'Brien's request, it appears that
two of the grounds for denial may be particularly relevant.

Communications between the District and the Commission would
fall within the scope of §87(2)(g). That provision 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. An example of a record that in my view would
be available would be a list of officers or employees of the
District who are required to submit financial disclosure statements
that is transmitted to the Commission. Although the list would
constitute inter-agency material, it would consist of factual
information available under §87(2)(g)(i). Conversely, if, for
instance, a communication seeks or offers an opinion or
recommendation, that document or portion thereof could be withheld
under §87(2)(g).

The other ground for denial of likely relevance, §87(2)(b),
provides that an agency may withhold records to the extent that
disclosure would constitute "an unwarranted invasion of personal
privacy". Although the standard concerning privacy is flexible and
may be subject to conflicting interpretations, the courts have
provided substantial direction regarding the privacy of public
employees. It is clear that public employees enjoy a lesser degree
of privacy than others, for it has been found in various contexts
that public employees are required to be more accountable than
others. Additionally, the courts have found that, as a general
rule, records that are relevant to the performance of a public
employee's official duties are available, for disclosure in such
instances would result in a permissible rather than an unwarranted
invasion of personal privacy [see e.g., Farrell v. Village Board of
Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe,
59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County
of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C.
Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981;
Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v.
City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of
State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v.
Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ,
Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].
To the extent that records are irrelevant to the performance of
one's official duties, it has been found that disclosure would
indeed constitute an unwarranted invasion of personal privacy [see
e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

Several of the decisions cited above, for example, Farrell,
Sinicropi, Geneva Printing, Scaccia and Powhida, dealt with
situations in which determinations indicating the imposition of
some sort of disciplinary action pertaining to particular public
employees were found to be available. However, when
unsubstantiated allegations, questions regarding impropriety or
charges of misconduct have not yet been determined or did not
result in disciplinary action, the records relating to such
allegations may, in my view, be withheld, for disclosure would
result in an unwarranted invasion of personal privacy [see e.g.,
Herald Company v. School District of City of Syracuse, 430 NYS 2d
460 (1980)]. Further, to the extent that charges are dismissed or
allegations are found to be without merit, I believe that they may
be withheld.

Again, since I am unfamiliar with the contents of the records,
I regret that I cannot offer more specific guidance. I hope,
however, that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Tim O'Brien