August 10, 1994
Mr. Joseph M. Ryan
646 77th Street
Brooklyn, NY 11209
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear Mr. Ryan:
I have received your letter of August 1 addressed to William Bookman, Chairman of the Committee on Open Government. As indicated above, the staff of the Committee is authorized to respond on behalf of its members.
According to your letter, your wife was recently "denied unrestricted use of paratransit" by the MTA-NYC Transit Authority "because her condition only qualified as a 'difficulty'." However, you contend that "without knowing what constitutes a 'difficulty' under the guidelines, one cannot determine if that Agency's guidelines comply with the ADA or are being properly applied." Your requests for "its ADA guidelines or criteria for gaining access to paratransit" have not been answered. Further, you wrote that it has been inferred that an appeal by your wife excuses the agency from furnishing the guidelines.
You have sought assistance in the matter. In this regard, I offer the following comments.
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. Additionally, it has been held that when records are accessible under the Freedom of Information Law, they must be made equally available to any person, without regard to one's status or interest [see Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75 (1984); Burke v. Yudelson, 51 AD 2d 673 (1976); Duncan v. Bradford Central School District, 394 NY 2d 362 (1976)]. As stated by the State's highest court, the Court of Appeals in Farbman, which involved a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. Consequently, one's status as a litigant or as a party in an administrative proceeding is irrelevant to that person's rights as a member of the public who seeks records under the Freedom of Information Law.
In my opinion, guidelines, criteria or policies adopted by an agency must be disclosed pursuant to §87(2)(g). Although that provision is one of the grounds for denial, due to its structure, it often requires disclosure. Section 87(2)(g) 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. I believe that guidelines and criteria would consist either of instructions to staff that affect the public available under §87(2)(g)(ii) or final agency policies available under §87(2)(g)(iii). Further, in a letter addressed to me on June 21, 1977 by former Assemblyman Mark Siegel, the lead sponsor of the revised Freedom of Information Law in 1977 and the author of the provision, he wrote that "...it is the intent that any so-called 'secret law' of an agency be made available. Stated differently, records or portions thereof containing any statistical or factual information, policy, or determinations upon which an agency relies is accessible."
Lastly, since your request was directed to the Chairman of the MTA, I point out that the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401) require that each agency designate one or more persons as "records access officer." The records access officer has the duty of coordinating an agency's response to requests, and requests should ordinarily be made to that person. The records access officer for the MTA is Ms. Jeanette Redmond, and it is suggested that you contact her at the MTA, 347 Madison Avenue, New York, NY 10017 or by phone at (212) 878-7173.
I hope that I have been of some assistance.
Robert J. Freeman
cc: William Bookman