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April 2, 1996

 

 

Ms. Eve B. Burton
Vice President/Assistant General Counsel
Daily News
450 West Thirty-Third Street
New York, NY 10001-2681

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, unless otherwise indicated.

Dear Ms. Burton:

As you are aware, I have received your letter of January 31 in which you requested an advisory opinion concerning a response to a request by the Daily News for closing memoranda prepared by the New York City Department of Investigation (DOI). In addition, I have received a variety of related materials, including a lengthy and thoughtful letter prepared by Richard W. Mark, First Deputy Commissioner of DOI.

Although some areas of accord have been reached between yourself and DOI, you have questioned the propriety of the extent to which DOI has withheld various aspects of the memoranda.

By way of background, DOI initially denied the request in its entirety, even though you indicated that the Daily News "routinely obtained the identical information prior to the current mayoral administration." Upon reconsideration, DOI provided access to some memoranda, which in your words were in each instance, in a "highly redacted and unusable form."

Having met with officials of DOI, you agreed not to challenge its "redaction of the names and identifying details in memoranda relating to cases in which the DOI found there was no wrong-doing." Similarly, you did not challenge the deletion of names and identifying details pertaining to third party witnesses, including those who provided testimony during investigations. Nevertheless, you questioned all other redactions based upon your contention that the memoranda are final determinations of a government agency to which you are generally entitled. Additionally, you "challenged DOI's wholesale deletion of the names, title and employment addresses of those DOI officials who took part in the investigation."

For purposes of clarification, I note that Mr. Mark in his letter to me wrote that "[W]hile DOI does conduct some studies and issues some reports that, at the conclusion, turn out not to involve criminal misconduct, those otherwise public reports are not the object of the Daily News' request." He added that in his view, you sought memoranda pertaining only to "criminal investigations." You informed me, however, that your request involved closing memoranda prepared with respect to all cases, whether they were prepared in relation to criminal investigations or others. Mr. Mark referred to DOI's mission as reflected in the New York City Charter, §803(b), as well as a mayoral executive order, and in a telephone conversation with him, he characterized the DOI as "New York City's FBI." While it may be true that DOI conducts a variety of criminal investigative functions, it is my understanding that it also deals with issues concerning the practices and activities of City employees that may not rise to the level of criminal wrong-doing. Mr. Mark in fact referred to a portion of the executive order that relates in part to the elimination of corrupt activities and conflicts of interest within agencies. As stated in §803(b) of the Charter, the Commissioner [of DOI] "is authorized and empowered to make any study or investigation which in his opinion may be in the best interest of the City, including but not limited to investigations of the affairs, functions, accounts, methods, personnel or efficiency of any agency." It is my understanding that your request encompasses not only those closing memoranda dealing with criminal activities, but also those dealing with other activities that might be the focus of certain DOI investigations.

For reasons to be discussed later in detail, I believe that the statements offered by DOI reflecting the rationale for redactions are in some instances categorically too broad or inaccurate. However, I also disagree with your statement that "all the investigations" to which the memoranda pertains "have ended." While DOI's role in the investigations might have ended, some investigations might nonetheless continue after information has been forwarded to other agencies, such as the New York City Police Department, the FBI or perhaps the office of a district attorney. This is not to suggest that DOI's closing memoranda do not represent its final determinations, but rather merely that they may relate to matters that have ended in terms of the functions of DOI, but which have not ended in terms of their final action.

Mr. Mark also described the contents of closing memoranda somewhat more expansively than you did in your letter. In brief, you wrote that they include the name of the agency investigated, the charges against the agency or its employee, the scope of the investigation, the names of witnesses, and the name of the DOI employee who conducted the investigation. Mr. Mark wrote that:

"Closing memoranda contain more than DOI's final determination in a case. The document summarizes the allegation, steps taken to investigate the allegation (including witness identities and confidential operations), the agency's analysis of the facts, recommendations that grow out of the factual predicate, and the result of DOI's work. As the produced documents show, DOI reviewed each memorandum individually and applied FOIL exemptions. The material released provided the requestor with documents that, in general, disclosed the nature of the allegation, investigative steps taken (excepting methods held confidential), and the result of the investigation (e.g., unsubstantiated, substantiated and referred to another agency). Other, protected material was redacted."

With respect to the substance of the memoranda, DOI officials have referred to the "official information privilege" as a means of bolstering its contentions regarding the ability to withhold records or portions of records. Mr. Mark wrote that "DOI's position is not that the privilege stands alone as a justification for the redactions. Instead, while we rely on specific FOIL exemptions [to] cover the redacted materials, we point to this judicially-described privilege as an additional rationale for invoking these exemptions." From my perspective, although the official information privilege or its equivalent might be properly asserted in other contexts, it does not exist with respect to the ability to withhold records under the Freedom of Information Law. As stated by the Court of Appeals in 1979: "[T]he common-law interest privilege cannot protect from disclosure materials which that law requires to be disclosed" [see Doolan v. BOCES, 48 NY 2d 341, 347]. In short, either records or portions thereof fall within the grounds for denial appearing in §87(2) or they do not; and if they do not, there would be no basis for denial, notwithstanding a claim of privilege.

Similarly, there is some reliance placed upon a decision rendered by the U.S. Supreme Court concerning the federal Freedom of Information Act, specifically, Reporters Committee for Freedom of the Press v. U.S. Department of Justice [489 US 749 (1989)]. While the Court of Appeals has stated that New York State's Freedom of Information Law is "patterned" on its federal counterpart, the Court has declined to follow either the federal Act or its judicial interpretation when the language of the state statute or its legislative history indicates that following the lead of the federal government may be inappropriate [see Encore College Bookstore, Inc. v. Auxiliary Service Corporation, __ NY 2d __, December 27, 1995]. In this instance, I do not believe that the holding by the U.S. Supreme Court in Reporters Committee, supra, could be characterized as precedential or controlling. The Court in that decision held that "rap sheets", criminal history records, maintained by the Federal Bureau of Investigation were not subject to disclosure under the federal Freedom of Information Act. Its rationale was based on the conclusion that the purpose of the federal Act is to give the public the right to know of government's actions, and that since the disclosure of the personal information contained in a rap sheet revealed nothing about an agency's actions, an agency could withhold the information based on considerations of privacy. Under Reporters Committee, it would appear that records may be withheld on the ground that disclosure would result in an unwarranted invasion of personal privacy, unless the record sheds light on some governmental activity.

Nevertheless, the Court of Appeals has construed New York's Freedom of Information Law more expansively. In Capital Newspapers v. Whalen [69 NY 2d 246 (1987)], the Court of Appeals noted that: "The Appellate Division held that the Legislature intended to subject to disclosure only those records which revealed the workings of government..." (id., 250). In rejecting and reversing the decision of the Appellate Division, the Court of Appeals relied heavily on the specific language of the Freedom of Information Law, particularly the definition of the term "record". In short, I believe that reliance upon Reporters Committee would be misplaced, for I know of no judicial decision rendered under the state's Freedom of Information Law that has cited or relied upon that decision as a basis for determining issues involving the protection of privacy or otherwise.

The Daily News and DOI have focused essentially on several points of disagreement regarding the response to the denial.

The first involves the application of subparagraphs (i) and (iii) of §87(2)(e). Those provisions enable 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...

iii. identify a confidential source or disclose confidential information relating to a criminal investigation..."

DOI has contended that the provision cited above can be applied to "both information relating to ongoing cases and investigations, and to information where there is no pending proceeding because of the "chilling effect" that disclosure of confidential information would have on future investigations. The Daily News, on the other hand, has suggested that the capacity to withhold as stated by DOI is too broad and that the ability to cite §87(2)(e) diminishes when an investigation has ended.

In this regard, for reasons described earlier, I do not believe that the preparation of a closing memorandum necessarily signifies the end of an investigation, for DOI might refer the matter to a different agency for further investigation and/or prosecution. Consequently, although closing memoranda are presumptively accessible to the public, I believe that DOI may in appropriate circumstances withhold the memoranda or portions thereof on the ground that disclosure would interfere with an investigation that is continuing and is being carried out by another agency or in the rare circumstance in which disclosure would interfere with a judicial proceeding. I agree with your view that some of DOI's statement is overbroad, particularly its reference to the chilling effect of disclosure on future investigations regarding confidential law enforcement information. However, as I understand the agreement reached between DOI and the Daily News, the News has agreed that names of witnesses, for example, need not be disclosed, and the News is not seeking that kind of information. Moreover, as a matter of law, I do not believe that an agency can, by means of practice or policy, generally withhold information based upon a contention that disclosure would adversely affect future investigations. In my opinion, the ability to withhold records under the Freedom of Information Law can only be based on the effects of disclosure in conjunction with attendant facts. Stated differently, I believe that there must be some identifiable harm to be demonstrated in accordance with one or more of the grounds for denial appearing in §87(2) in order to justify a denial. As stated by the Court of Appeals:

"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)].

In sum, while there may be a basis for withholding a closing memorandum or portions thereof under §87(2)(e) when DOI has referred the matter to another law enforcement agency, I do not believe that it could rely as a matter of policy or routine practice upon that provision in every instance, especially when cases and investigations are no longer ongoing. Rather, I believe that the propriety of asserting §87(2)(e) must be determined on a case by case basis.

The foregoing is intended to pertain to the substance of the closing memoranda, and not the identities of witnesses or other third parties, for those items do not appear to be at issue. In a related vein, it is emphasized that the introductory language of §87(2) refers to the ability to withhold "records or portions thereof" that fall within the scope of the ensuing exceptions. Based upon the phrase quoted in the preceding sentence, it is clear that an agency must review records sought in their entirety to determine which portions, if any, may justifiably be withheld. In the context of the matter at hand, it would appear that identifying details, especially those pertaining to witnesses, "sources", or others might justifiably be deleted, while other related aspects of the records might be accessible under the Law. Those kinds of identifying details could in my view be withheld irrespective of whether an investigation has been completed or whether it relates to a criminal or non-criminal matter. Exceptions that would require disclosure would pertain to those situations where disclosures have been made in other contexts, i.e., those in which witnesses or others are identified during judicial proceedings.

I note, too, that a denial based on §87(2)(e) might be valid today but inappropriate in the future. If a matter is referred to another law enforcement agency for further investigation or prosecution now, disclosure might indeed interfere with the investigation. However, if in the future, the matter results in a public judicial proceeding, the harmful effects of disclosure described in §87(2)(e) might essentially have disappeared. In that event, DOI and perhaps other agencies may be required to disclose records that previously had been properly withheld.

With respect to the "privacy interests of an accused subject", DOI has contended that privacy must be protected in all cases, but especially where no wrongdoing is established. Further, DOI cited an advisory opinion rendered by this office on August 28, 1987 that, in its view, bolsters its position. In that opinion, it was advised that a complaint made against a public employee "and records related to it that identify the person against whom the complaint is made may generally be withheld on the ground that disclosure would result in an unwarranted invasion of personal privacy." I continue to have that opinion in a relation to cases where no determination has been reached or where the charges are found to be baseless. Nevertheless, if a final determination identifies a person who is the subject of a charge or allegation and the determination is that the charge or allegation has no merit, I believe that an applicant would have the right to obtain the substance of the determination, following the deletion of personally identifiable details. The Daily News may be interested not only in those cases in which charges have been substantiated, but also those in which the charges are found to have been without merit, perhaps as a means of attempting to ascertain more fully how DOI operates and carries out its official duties.

Also with regard to accused subjects, for purposes of clarification regarding the stance of this office, I note that Mr. Mark in footnote 5 of his letter referred to guidance given by the Appellate Division concerning requests for records pertaining to city marshals. He wrote that the First and Second Departments have supervisory authority of the marshals "which they have delegated to DOI." Mr. Mark alluded specifically to disciplinary proceedings and wrote that "[w]hile the courts stated that findings and sanctions should be disclosed, they also stated that 'the release of information regarding disciplinary action taken against individual marshals should not include the identities of the individuals involved in cases were the sanction imposed was less than removal from office'." With all due respect to the First and Second Departments, numerous decisions indicate that final determinations reflective of disciplinary action taken or sanctions imposed are available, even though sanctions rarely involve removal from office.

Although the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public employees. First, it is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others. Second, with regard to records pertaining to public employees, the courts have found that, as a general rule, records that are relevant to the performance of a public employee's official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

In situations in which allegations or charges have resulted in the issuance of a written reprimand, disciplinary action, or findings that public employees have engaged in misconduct, records reflective of those kinds of determinations have been found to be available, including the names of those who are the subjects of disciplinary action [see Powhida v. City of Albany, 147 AD 2d 236 (1989); also Farrell, Geneva Printing, Scaccia and Sinicropi, supra]. Similarly, even though the sanction was far short of removal from office, it was recently held that a settlement agreement between an employee and an agency was available insofar as it included admissions of misconduct [Larocca v. Board of Education of Jericho Union Free School District, 632 NYS 2d 576, ___ AD 2d ___ (1995)].

You have contended that DOI cannot redact the names, titles and employment addresses of its employees involved in investigations. DOI, however, has expressed the belief that the Freedom of Information Law "allows DOI to withhold identification of a law enforcement agent assigned to a particular investigation because disclosure may impede that individual's effectiveness in future investigations, and would also amount to an invasion of privacy." In short, I disagree with DOI's contention. If a DOI employee is currently involved in an investigation and disclosure of identifying details pertaining to that employee in relation to that investigation would interfere with the investigation, I would agree that the records could be withheld under §87(2)(e)(i) of the Freedom of Information Law. Nevertheless, after a closing memo has been prepared and DOI's investigation has been completed, disclosure of the identity of its employees would no longer interfere with the investigation. Moreover, as suggested in the discussion concerning the privacy of public employees, as a general matter, disclosure of employees' names associated with their work product would be relevant to the performance of their official duties and disclosure would, therefore, constitute a permissible rather than an unwarranted invasion of their personal privacy. The foregoing is not intended to suggest that names of others (i.e., the subjects of unsubstantiated allegations or witnesses) could not be withheld, but rather that the names of DOI employees who have completed their duties relative to an investigation must, in my view, be disclosed. I note, too, that recent judicial decisions suggest that the exceptions to rights of access pertaining to the protection of privacy would not apply to an individual acting in his or her business capacity [see e.g., ASPCA v. NYS Dept. of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989, concerning a request for names and addresses of mink and fox farmers; Newsday v. NYS Dept. of Health, Supreme Court, Albany County, October 15, 1991, concerning names of cardiac surgeons coupled with empirical data regarding their surgical performance].

Mr. Mark also contended that certain aspects of the closing memoranda may be withheld under §87(2)(g), particularly with respect to "procedural recommendations...suggested to other agencies" and similar materials. The cited provision states that an agency may withhold records or portions thereof 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.

From my perspective, there is a distinction between those portions of the memoranda that indicate the result of an investigation (i.e., unsubstantiated or substantiated) that may be characterized as DOI's final determinations and others that might include recommendations to other agencies. The recommendations could in my view be withheld; the remainder, however, including factual information, would in my opinion be required to be disclosed, unless a different ground for denial could properly be asserted.

Lastly, the Freedom of Information Law is permissive. While an agency may withhold records or portions thereof in appropriate circumstances, it is not required to do so. As stated by the Court of Appeals:

"while an agency is permitted to restrict access to those records falling which the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY 2d 562, 567 (1986)].

Therefore, while I believe that some aspects of the records at issue may be withheld in accordance with the preceding commentary, there is no requirement that they must be withheld. Frequently, for a variety of reasons, agencies choose to disclose, especially opinions and recommendations, even though they may have the authority to withhold those kinds of materials.

A copy of this opinion will be forwarded to Mr. Mark in an effort to enable the Daily News and DOI to reach an accord short of litigation.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Richard W. Mark