June 19, 1995
Mr. Lawrence Kunin
NYS Division of Human Rights
55 West 125 Street
New York, NY 100027
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. Kunin:
I have received your letter of May 30 in which you requested an advisory opinion concerning the determination of a recent appeal rendered by Commissioner Designee Edward Mercado pursuant to the Freedom of Information Law.
According to the materials, an attorney sought a list of cases filed with the Division of Human Rights against certain named individuals or entities. In brief, although a computer printout was disclosed with respect to one defendant, including "an event code description sheet to explain the determination codes, and a complaint identification code sheet to explain the complaint numbering system", the applicant was informed that the Division "could not identify cases filed against any of the other listed defendants." Additionally, Commissioner Mercado wrote that:
"the names of parties to complaints currently under investigation to determine whether there is probable cause (see, Executive Law §297.2(a)(b)) were deleted on the grounds that such disclosure would constitute an unwarranted invasion of personal privacy (see Public Officers Law, Sec. 87.2). This is meant to protect the privacy of parties in connection with the filing of possible frivolous or scurrilous charges."
For the following reasons, I am in general agreement with the Commissioner's response to the appeal.
First, since the Division could locate records regarding only one defendant, a possible issue involves whether the request "reasonably described" the records as required by §89(3) of the Freedom of Information Law. It has been held that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].
Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:
"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).
In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, the agency was able to locate the records on the basis of an inmate's name and identification number. It appears that the Division locates case information by means of defendant names or perhaps by either plaintiff (complainant) name or defendant name. If that is so, even though information could be located or retrieved concerning only one defendant, I believe that the Division engaged in a search and retrieval of information consistent with the requirements imposed by the Freedom of Information Law.
Second, 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 the provision to which the Commissioner alluded, §87(2)(b). That provision authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." It is my understanding, based on §297(4)(a)(i) of the Executive Law, that if there is a finding of probable cause, notice must be given to the parties that a public hearing will be held "not less than five nor more than fifteen days" after service of notice. Consequently, when probable cause is found, the names of the parties become public.
Prior to that time, however, I believe that names of complainants could properly be withheld. I point out that §89(2)(b) contains five examples of unwarranted invasions of personal privacy, the last two of which include:
"iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or
v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."
In my view, what is relevant to the work of the agency is the substance of the complaint, i.e., whether or not the complaint has merit. The identity of the person who made the complaint is often irrelevant to the work of the agency, and in such circumstances, I believe that identifying details may be deleted. In the context of the work of the Division of Human Rights, during its investigation following the receipt of a complaint, what is relevant to the work of the agency is whether the complaint has merit. Consequently, I believe that disclosure of the identity of a complainant prior to a finding of probable cause would constitute an unwarranted invasion of personal privacy.
With respect to defendants, or "respondents", as they are characterized in the Executive Law, prior to a finding of probable cause, they are the subjects of allegations that may be found later to be meritorious or devoid of merit. Therefore, insofar as records identify people characterized as defendants or respondents prior to a finding of probable cause, they could, in my view, be withheld as an unwarranted invasion of personal privacy. As suggested in the determination, premature disclosure could involve "frivolous or scurrilous charges." I believe, however, that the provisions concerning privacy in the Freedom of Information Law are restricted to items identifiable to natural persons; they are not in my opinion applicable to entities, such as business. Article 6-A of the Public Officers Law, the Personal Privacy Protection Law, when read on conjunction with the Freedom of Information Law, in my opinion, makes it clear that the protection of privacy as envisioned by those statutes is intended to pertain to personal information about natural persons [see Public Officers Law, §§92(3), 92(7), 96(1) and 89(2-a). Therefore, insofar as the information at issue would identify entities, such as business establishments, rather than natural persons, I do not believe that those identifiers could be withheld based upon considerations of privacy. In a decision rendered by the Court of Appeals that focused upon the privacy provisions, the Court referred to the authority to withhold "certain personal information about private citizens" [see Matter of Federation of New York State Rifle and Pistol Clubs, Inc. v. The New York City Police Department, 73 NY 2d 92 (1989)]. In view of that statement, again, I believe that the authority to withhold the information based upon considerations of privacy is restricted to those situations in which the information pertains to natural persons.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Edward Mercado, Commissioner Designee