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January 2, 1996

 

 

Mr. Duncan T. Osborne
400 Sixth Avenue, #1C
Brooklyn, NY 11215

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. Osborne:

I have received your letter of December 4. You have sought an advisory opinion "as a prelude to bringing a lawsuit" concerning the propriety of a denial of access to records by the Division of Alcoholic Beverage Control ("the Division").

By way of background, in September, you sent requests for records concerning four licensed establishments in New York City to the Division. The records sought include inspection reports and records relating to inspections by the Division, as well as any other records maintained by the Division pertaining to those establishments. The Division denied access to the records in their entirety for a variety of reasons, which will be reviewed in the ensuing commentary.

While it is possible that some aspects of the records sought might properly have been withheld, it is unlikely in my view that a blanket denial of access was appropriate or justifiable. 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. Moreover, I point out that the introductory language of §87(2) refers to the ability of an agency to withhold "records or portions thereof" that fall within the scope of the grounds for denial that follow. From my perspective, the phrase quoted in the preceding sentence indicates a recognition on the part of the drafters of the statute that there may be situations in which a single record or report includes both information that must be disclosed and information that may be withheld. That phrase in my opinion also imposes an obligation upon an agency to review records sought in their entirety to determine which portions, if any, may properly be withheld. If, as the result of such review, it is determined that portions of the records fall within one or more of the grounds for denial, those aspects of the records may be deleted, but the remainder must be disclosed.

The denial of your requests refers repeatedly to "complaints, police referrals, inspection/investigation reports and all investigative materials related thereto."

It is assumed that the term "complaints" pertains to complaints made by members of the public concerning the establishments in question. With respect to such complaints, it has generally been advised that the substance of a complaint is available, but that those portions of the complaint which identify complainants may be deleted on the ground that disclosure would result in "an unwarranted invasion of personal privacy" pursuant to §87(2)(b). I point out that §89(2)(b) states that an "agency may delete identifying details when it makes records available." Further, the same provision 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 pertaining to the complainant may be deleted. The remainder of the complaint, however, would in my opinion be available, unless a different ground for denial could properly be asserted.

Section 87(2)(e) is cited throughout the denial, and that provision 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."

The language quoted above provides agencies to withhold records or portions of records to the extent that the harmful effects of disclosure described in subparagraphs (i) through (iv) would arise by means of disclosure. As suggested earlier, records must be reviewed to determine the extent to which the grounds for denial might apply. While some or most of the records at issue might have been compiled for law enforcement purposes, if my understanding of their contents is accurate, the blanket denial of access was overbroad. If an inspection report indicates, for example, that certain violations were found, my assumption is that the proprietor of an establishment is so informed so that deficiencies can be corrected or perhaps to indicate the basis of a fine or penalty. When that kind of finding is made, none of the harmful effects of disclosure described in §87(2)(e) would arise, and there would likely be no basis for withholding under that or any other ground for denial. Further, often the harmful effects of disclosure may essentially disappear due to the passage of time or the occurrence of an event. If, for example, a crime is being investigated, and a journalist such as yourself or a member of the public requests records identifying suspects or witnesses or perhaps indicating the course of an investigation, it is likely that disclosure would interfere with the investigation and that the records could be withheld. Nevertheless, when arrests are made, it is likely that the same records would become accessible, at least in part, because disclosure would no longer interfere with the investigation; the investigation would have ended.

As in the case of the deletion of identifying details regarding complainants, names or other information identifiable to confidential sources or witnesses might justifiably be withheld. Other portions of records containing that information, however, might be accessible.

In a decision rendered by the Court of Appeals, the State's highest court, that focused on §87(2)(e)(iv), it was held that:

"The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised the nonroutine procedures by which an agency obtains its information (see Frankel v. Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution.

"To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed. Such information in the hands of the public does not impede effective law enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements" [47 NY 2d 568, 572 (1979)].

Under the circumstances, disclosure of the records sought might result in the correction rather than the continuation of alleged violations, if indeed violations have occurred.

Section 87(2)(g) was also cited in the denial, and I believe that it is relevant to an analysis of rights of access, particularly because it might have been misconstrued. That provision 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 point out that the denial refers to inter-agency or intra-agency materials that are not "statistical or factual tabulations of data." As indicated above, however, §87(2)(g)(i) requires the disclosure of "statistical or factual tabulations or data."

Further, as in the case of provisions discussed earlier, the contents of materials falling within the scope of §87(2)(g) represent 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.

In another aspect of the response, it was stated that:

"You have been denied access to any information pertaining to the above captioned licensee which is inaccessible to the licensee under the provisions of the Personal Protection Law.

"Where an agency maintains information pertaining to a particular data subject, and where such information is inaccessible to the data subject under the Personal Privacy Protection Law, a request under the Freedom of Information Law for the public disclosure of such information must be denied as an unwarranted invasion of the data subject's personal privacy."

The preceding statement in my opinion represents a misinterpretation of law. One aspect of the Personal Privacy Protection Law pertains to an individual's general right to obtain state agency records pertaining to himself or herself. Rights conferred by that statute upon individuals do not apply to certain categories of records, such as so-called "public safety agency records" [see §95(7)]. The quoted phrase is defined in §92(8) to include records of "any agency or component thereof whose primary function is the enforcement of civil or criminal statutes if such record pertains to investigation, law enforcement, confinement of persons in correctional facilities..." and the like. The Personal Privacy Protection Law, however, is separate from the Freedom of Information Law. While an individual may not have rights of access under the former to public safety agency records, he or she may nonetheless have rights under the latter. By means of example, an inmate has no rights to records under the Personal Privacy Protection Law pertaining to his or her incarceration from the Department of Correctional Services because any such records would constitute public safety agency records Notwithstanding the absence of rights under that statute, numerous records would be available to the inmate about himself or herself under the Freedom of Information Law (i.e., records of departmental actions regarding confinement and release, etc.). In short, therefore, even though an individual may not have rights under the Personal Privacy Protection Law, he or she, and even the public generally, may enjoy rights of access under the Freedom of Information Law.

In a somewhat related vein, it is assumed that the records sought pertain in great measure to business entities or persons acting in a business capacity. I note in this regard that there are several judicial decisions, both New York State and federal, which pertain to records about individuals in their business or professional capacities, rather than their personal capacities. One decision involved a request for the names and addresses of mink and ranch fox farmers from a state agency (ASPCA v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). In granting access, the court relied in part and quoted from an opinion rendered by this office in which it was advised that "the provisions concerning privacy in the Freedom of Information Law are intended to be asserted only with respect to 'personal' information relating to natural persons". Further, the court held that:

"...the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence. In interpreting the Federal Freedom of Information Law Act (5 USC 552), the Federal Courts have already drawn a distinction between information of a 'private' nature which may not be disclosed, and information of a 'business' nature which may be disclosed (see e.g., Cohen v. Environmental Protection Agency, 575 F Supp. 425 (D.C.D.C. 1983)."

In another more recent decision, Newsday, Inc. v. New York State Department of Health (Supreme Court, Albany County, October 15, 1991)], data acquired by the State Department of Health concerning the performance of open heart surgery by hospitals and individual surgeons was requested. Although the Department provided statistics relating to surgeons, it withheld their identities. In response to a request for an advisory opinion, it was advised by this office, based upon the New York Freedom of Information Law and judicial interpretations of the federal Freedom of Information Act, that the names should be disclosed, for the data related to professional licensees acting in the performance of professional activities. The court agreed and cited the opinion rendered by this office.

Like the Freedom of Information Law, the federal Act includes an exception to rights of access designed to protect personal privacy. Specifically, 5 U.S.C. 552(b)(6) states that rights conferred by the Act do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." In construing that provision, federal courts have held that the exception:

"was intended by Congress to protect individuals from public disclosure of 'intimate details of their lives, whether the disclosure be of personnel files, medical files or other similar files'. Board of Trade of City of Chicago v. Commodity Futures Trading Com'n supra, 627 F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EOA, 484 F.2d 843, 845 (4th Cir. 1973). Although the opinion in Rural Housing stated that the exemption 'is phrased broadly to protect individuals from a wide range of embarrassing disclosures', 498 F.2d at 77, the context makes clear the court's recognition that the disclosures with which the statute is concerned are those involving matters of an intimate personal nature. Because of its intimate personal nature, information regarding 'marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payment, alcoholic consumption, family fights, reputation, and so on' falls within the ambit of Exemption 4. Id. By contrast, as Judge Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399, the decisions of this court have established that information connected with professional relationships does not qualify for the exemption" [Sims v. Central Intelligence Agency, 642 F.2d 562, 573-573 (1980)].

In Cohen, the decision cited in ASPCA v. Department of Agriculture and Markets, supra, it was stated pointedly that: "The privacy exemption does not apply to information regarding professional or business activities...This information must be disclosed even if a professional reputation may be tarnished" (supra, 429). Similarly in a case involving disclosure of those whose grant proposals were rejected, it was held that:

"The adverse effect of a rejection of a grant proposal, if it exists at all, is limited to the professional rather than personal qualities of the applicant. The district court spoke of the possibility of injury explicitly in terms of the applicants' 'professional reputation' and 'professional qualifications'. 'Professional' in such a context refers to the possible negative reflection of an applicant's performance in 'grantsmanship' - the professional competition among research scientists for grants; it obviously is not a reference to more serious 'professional' deficiencies such an unethical behavior. While protection of professional reputation, even in this strict sense, is not beyond the purview of exemption 6, it is not at its core" [Kurzon v. Department of Health and Human Services, 649 F.2d 65, 69 (1981)].

Insofar as the records sought might include personal financial information or a social security number, I believe that those kinds of items could be withheld on the ground that disclosure would constitute an unwarranted invasion of privacy. On the other hand, to the extent that the records pertain to individuals acting in their business capacities, it is unlikely in my view that the privacy provisions in the Freedom of Information Law or the Personal Privacy Protection Law would serve as a means of denying access.

Lastly, 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 compliance with and understanding of the Freedom of Information Law, and to obviate the necessity of engaging in litigation, copies of this opinion will be forwarded to Division officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Maris C. Hart, Deputy Commissioner
Adrian C. Hunte, Counsel