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December 22, 1995

 

Ms. Carolyn Schurr
Newsday
235 Pinelawn Road
Melville, NY 11747

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 Ms. Schurr:

I have received your correspondence of December 6. You have sought an advisory opinion concerning a denial of a request made under the Freedom of Information Law by Deborah Barfield, a Newsday reporter, for "the name and location of the motel that will no longer be served by Community Housing-Innovations as a result of the Dec. 1 contract change with the county."

The denial is based on a provision of the Suffolk County "Standard Operating Procedure" and §87(2)(f) of the Freedom of Information Law, both of which state that an agency may withhold records when disclosure "would endanger the life or safety of any person." In an attempt to justify the denial, the acting records access officer for the County Department of Social Services wrote that "in the past, simple publication of the name of an emergency housing facility created an active and emotional hostility within the nearby community, even if no problems had previously existed", and that, therefore, "it was reasonable to conclude that there is a high risk that a similar reaction would take place towards the facility in question." He added that "[s]uch a situation presents a real threat to the safety of our recipients, including children."

In this regard, 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, mere speculation cannot serve as a justifiable basis for withholding records under §87(2)(f), and I do not believe that "emotional hostility" can be equated with endangerment. If that kind of standard could be asserted to justify denials of access to government records, many records that are routinely disclosed, despite the possibility of public distaste, outrage or hostility, could be withheld. If a person is charged with a crime, even a heinous crime, that person's name, address and other details are disclosed. Particularly in Suffolk County, hostility has been expressed time and again concerning the salaries of school district administrators and teachers; nevertheless, their identities, salaries and work locations remain a matter of public record. The locations of public or low income housing are generally known to the public, but they are not cordoned off or walled, even though some people oppose the concept of public assistance. In short, there are many public disclosures that may create hostility within a community, but that alone, or the mere speculation that hostility might be created, would not serve to enable the government to withhold information from the public. The denial of the request appears to be based essentially on the fear that Suffolk County residents would act violently if they know that a facility is used for emergency housing. I simply cannot believe that such a fear is warranted or provable. Moreover, it is possible that members of the community in question are aware of the use of the site in question. If that is so, that factor would further diminish the validity of the assertion of an exception to rights of access.

It is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).

In an effort to enhance to communicate my views on the matter, copies of this opinion will be forwarded to County officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: William D. Schneid
Derrick Robinson, Assistant County Attorney