Paul L. Dashefsky, Esq.
317 Middle Country Road
Smithtown, NY 11787
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. Dashefsky:
I have received your letter of August 12. You indicated that you represent a former employee of the Department of Public Safety at the State University at Stony Brook, which has denied his request for certain records pertaining to him.
According to your letter, the University maintains two file categories of records concerning its present and former employees. One consists of a "personal history file", which has been made available to him. The other, the "administrative file", contains other employment related records that have been withheld, such as "union and job related complaints", a memorandum concerning your client prepared by his supervisor relating to a particular incident, another memorandum "concerning alleged misperceptions made by" your client, and correspondence between the University and an "outside Employee Assistance Program" to which the University referred the client.
You have sought an opinion concerning your client's rights of access to the administrative file and the kinds of documents that you described. From my perspective, while some elements of the documentation in question might justifiably be withheld, it is likely that significant portions must be disclosed to him. In this regard, I offer the following comments.
I believe that two statutes, the Freedom of Information Law and the Personal Privacy Protection Law, are pertinent to an analysis of rights of access. Both relate to records maintained by state agencies, and for purposes of the former, §86(4) of the Public Officers Law defines the term "record" to include:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
For purposes of the latter, §92(9) of the Public Officers Law defines "record" to mean:
"any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject irrespective of the physical form or technology used to maintain such personal information."
Based on the foregoing, the entirety of the administrative file would consist of records subject to rights conferred by the Freedom of Information Law. It is likely that most if not all documents within the file constitute records under the Personal Privacy Protection Law as well.
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. In my view, two of the grounds for denial may be pertinent.
Section 87(2)(g) authorizes 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.
Also potentially relevant is §87(2)(b), which permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." While your client could not invade his own privacy, the cited provision might be asserted to withhold records or portions thereof identifying others. For example, in the context of a complaints, it has generally been advised that an agency may withhold records insofar as disclosure would identify a complainant.
The Personal Privacy Protection Law pertains to a class of records, those that include personal information that can be retrieved by means of an individual's name or other personal identifier. In brief, that statute generally requires that state agencies disclose records about data subjects to those persons. A "data subject" is "any natural person about whom personal information has been collected by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal information" is defined to mean "any information concerning a data subject which, because of name,number, symbol, mark or other identifier, can be used to identify that data subject" [§92(7)].
Under §95 of the Personal Privacy Protection Law, a data subject has the right to obtain from a state agency records pertaining to him or her, unless the records sought fall within the scope of exceptions appearing in subdivisions (5), (6) or (7) of that section. I point out that none of those exceptions is comparable to §87(2)(g) of the Freedom of Information Law concerning inter-agency and intra-agency materials. Consequently, the Personal Privacy Protection Law may provide the subject of records with rights of access that exceed rights conferred by the Freedom of Information Law. Notwithstanding the foregoing, I believe that an agency may withhold those aspects of records which if disclosed would result in an unwarranted invasion of privacy with respect to persons other than your client.
I hope that I have been of assistance.
Robert J. Freeman