March 14, 1994
Mr. Yankie Goldman
267 Rt. #306
Monsey, NY 10952
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. Goldman:
I have received your letter in which, as a reporter for the
Advocate in Rockland County, you sought guidance concerning a
request made under the Freedom of Information Law.
In short, at the end of January, you directed a request to the
Town of Ramapo in which you sought information concerning "all
Section 8 housing applications done by the Town in January, the
number of inspections passed/rejected, and reasons for rejection,
if any. Having received no response, you contacted the Town
Attorney, who informed you that no such documents exists, and that
the Town need not supply the information in question.
In this regard, I offer the following comments.
First, it is emphasized that the Freedom of Information Law
pertains to existing records. Section 89(3) of that statute states
in part that an agency need not create a record in response to a
request. Therefore, if no record exists dealing specifically with
Section 8 inspections, or if no records have been prepared
indicating the number of any such inspections that have "passed" or
been "rejected", and the reasons for such actions, the Town would
not be obliged to create new records or prepare totals on your
behalf. For future reference, rather than seeking "the number" of
certain actions, since no record reflective of a number or total
may have been prepared, it is suggested that you seek existing
records pertaining to your area of inquiry. In some instances, you
may have the ability to obtain or review records and prepare a
total or tabulations on your own initiative.
Second, insofar as the Town maintains records concerning
Section 8 housing, it is likely that certain aspects of those
records could be withheld.
By way of background, 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 §87(2)(a) through (i) of the Law.
Relevant to the matter is §87(2)(b), which enables an agency to
withhold records or portions thereof the disclosure of which
constitute "an unwarranted invasion of personal privacy".
While I believe that the Freedom of Information Law is
intended to ensure that government is accountable, the privacy
provisions of the Law enable government to prevent disclosures
concerning the personal or intimate details of individuals' lives.
As such, with respect to grant, loan or similar programs, often the
question involves the extent to which disclosure would constitute
an unwarranted invasion of personal privacy.
From my perspective, a disclosure that permits the public
determine the general income level of a participant in such a
program based upon income eligibility would likely constitute an
unwarranted invasion of personal privacy, for such a disclosure
would indicate that a particular individual has an income or
economic means below a certain level. In some circumstances,
individuals might be embarrassed by such a disclosure. Further,
the New York State Tax Law contains provisions that require the
confidentiality of records reflective of the particulars of a
person's income or payment of taxes (see e.g., section 697, Tax
Law). As such, it would appear that the Legislature felt that
disclosure of records concerning income would constitute an
improper or "unwarranted" invasion of personal privacy.
Therefore, insofar as the records sought including the names,
addresses or other identifying details pertaining to tenants in
Section 8 housing, I believe that those items may be withheld or
deleted, as the case may be, from the Town's records (see Tri-State
Publishing Co. v. City of Port Jervis, Community Development
Agency, Supreme Court, Orange County, March 4, 1992).
Insofar as records pertaining to inspections of Section 8
housing exist and can be located, I believe that personally
identifying details regarding tenants (i.e., their names, addresses
and the like) could be deleted prior to disclosure of other
material in which you may be interested.
Lastly, I point out that the Freedom of Information Law
provides direction concerning the time and manner in which agencies
must respond to requests. Specifically, §89(3) of the Freedom of
Information Law states in part that:
"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."
If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
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, 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."
In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].
I hope that I have been of assistance and that the foregoing
serves to enhance your understanding of the Freedom of Information
Robert J. Freeman
cc: Town Clerk