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April 1, 1994

 

 

Ms. Judith Preble
Associate Attorney in Charge
The Legal Aid Society
15 Park Row
New York, NY 10038

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,
unless otherwise indicated.

Dear Ms. Preble:

As you are aware, I have received your letter of February 24
and the correspondence attached to it. You have sought an advisory
opinion concerning a denial of a request for records maintained by
the Office of the Chief Medical Examiner of the City of New York
pertaining to a particular autopsy.

In brief, the Director of Public Affairs for the Office of the
Chief Medical Examiner denied the request pursuant to §557(g) of
the New York City Charter, which refers to autopsy reports and
related records and states in relevant part that "[s]uch records
shall not be open to public inspection". On the basis of that of
that provision, she referred to §87(2)(a) of the Freedom of
Information Law, which authorizes an agency to withhold records
that "are specifically exempted from disclosure by state or federal
statute". Following the denial of the request, in your appeal, you
contended that §87(2)(a) would not serve as an appropriate basis
for denial, for §557(g) of the Charter does not constitute a
"statute". You referred in the appeal to a number of judicial
decisions as well as advisory opinions rendered by this office
concerning the application of §87(2)(a) in conjunction with
enactments other than statutes. Despite your familiarity with
those interpretations, I believe that the point should be
reiterated. Specifically, it has been held by several courts,
including the Court of Appeals, that an agency's regulations or the
provisions of a local enactment, such as an administrative code,
local law, charter or ordinance, for example, do not constitute a
"statute" [see e.g., Morris v. Martin, Chairman of the State Board
of Equalization and Assessment, 440 NYS 2d 365, 82 Ad 2d 965,
reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole,
385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse,
521 NYS 2d 207 (1987)]. For purposes of the Freedom of Information
Law, a statute would be an enactment of the State Legislature or
Congress. Therefore, a local enactment cannot confer, require or
promise confidentiality. If an agency could, own its own
initiative, adopt regulations or, in the case of a municipality,
enact legislation exempting records from disclosure in a manner
inconsistent with a statute enacted by the State Legislature (i.e.,
the Freedom of Information Law), the statute could be circumvented
and its effect nullified.

In addition, you quoted from an advisory opinion (FOIL AO
6761) dealing with §557(g) in which it was advised, in essence,
that if that provision was enacted by the State Legislature, which
is so with respect to many provisions of the New York City Charter,
it would constitute a statute that exempts certain records from
disclosure when applied in conjunction with §87(2)(a). It was also
advised, however, that if §557(g) was not enacted in that manner,
"it could not be characterized as a statute that exempts records
from disclosure". Due to our limited resources, I could not
ascertain the means by which §557(g) was enacted. You indicated,
however, that §557(g) "was added to the City Charter by local law
passed by the New York City Council and approved by the Mayor",
citing Local Law 1977, No. 25. If your analysis of the legislative
history is accurate, I would agree with your contention that
§557(g) is not a statute that exempts records from disclosure.

I acknowledge, as you did in your appeal, the decision
rendered in Mullady v. Bogard [153 Misc. 2d 1018, 583 NYS 2d 744
(1992)] in which a denial of access based on §557(g) was upheld.
I agree with your contention the analysis of the status of §557(g)
is incomplete, for the decision did not deal specifically with the
method of enactment of that provision.

Assuming that §557(g) is not a statute that exempts the
records sought from disclosure, I believe that the records would be
subject to rights conferred by the Freedom of Information Law. 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. From my perspective, several of
the grounds for denial may be relevant to an analysis of rights of
access. The extent to which they could properly be asserted would
be dependent on the contents of the records and the effects of
their disclosure.

Many of the records would fall within the scope of §87(2)(g),
which 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.

The contents of materials falling within the scope of
§87(2)(g) serve as the factors in determining the extent to which
inter-agency or intra-agency materials must be disclosed or may be
withheld. For example, in Ingram v. Axelrod, the Appellate
Division held that:

"Respondent, while admitting that the report
contains factual data, contends that such data
is so intertwined with subject analysis and
opinion as to make the entire report exempt.
After reviewing the report in camera and
applying to it the above statutory and
regulatory criteria, we find that Special Term
correctly held pages 3-5 ('Chronology of
Events' and 'Analysis of the Records') to be
disclosable. These pages are clearly a
'collection of statements of objective
information logically arranged and reflecting
objective reality'. (10 NYCRR 50.2[b]).
Additionally, pages 7-11 (ambulance records,
list of interviews) should be disclosed as
'factual data'. They also contain factual
information upon which the agency relies
(Matter of Miracle Mile Assoc. v Yudelson,
68 AD2d 176, 181 mot for lve to app den 48
NY2d 706). Respondents erroneously claim that
an agency record necessarily is exempt if both
factual data and opinion are intertwined in
it; we have held that '[t]he mere fact that
some of the data might be an estimate or a
recommendation does not convert it into an
expression of opinion' (Matter of Polansky v
Regan, 81 AD2d 102, 104; emphasis added).
Regardless, in the instant situation, we find
these pages to be strictly factual and thus
clearly disclosable" [90 AD 2d 568, 569
(1982)].

Similarly, the Court of Appeals has specified that the
contents of intra-agency materials determine the extent to which
they may be available or withheld, for it was held that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" (id. at 133).

In short, even though statistical or factual information may be
"intertwined" with opinions, the statistical or factual portions,
if any, as well as any policy or determinations, would be
available, unless a different ground for denial could properly be
asserted.

Also potentially relevant is §87(2)(b) concerning the
authority to withhold records to the extent that disclosure would
result in "an unwarranted invasion of personal privacy". While
that provision does not appear to be applicable as the records
pertain to the deceased [see Tri-State Publishing Company v. City
of Port Jervis, 523 NYS 2d 954 (1988)], others may be identified
in some of the records, such as those notified of a death or
perhaps witnesses or persons interviewed in an investigation. This
is not to suggest that identifying details concerning those persons
should be withheld, but rather that they may potentially be
withheld depending upon attendant facts.

Also of possible significance is §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 or 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."

Some of the records sought were not likely compiled for law
enforcement purposes. In those cases, §87(2)(e) would be
irrelevant. Insofar as that provision applies, the authority to
withhold must be considered based upon subparagraphs (i) through
(iv) and the potentially harmful effects of disclosure described in
those provisions.

Lastly, access to death certificates is, according to §4174 of
the Public Health Law, governed by that statute rather than the
Freedom of Information Law.

In sum, §557(g) of the New York City Charter does not appear
to be applicable as basis for denial, and rights of access, subject
to the qualifications described above, would in my view be
determined by the Freedom of Information Law.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Ellen Borakove
Wilfredo Lopez