February 26, 1997
Mr. Joel B. Lieberman
66 Richbell Road
White Plains, NY 10605
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. Lieberman:
I have received a copy of your letter of February 7 addressed to Manuel Menendez, Jr., Counsel to the New York State Housing Finance Agency, in which you requested copies of reports prepared by the Agency following its investigation of a complaint made against you by a named former temporary secretary. At the end of the letter, you wrote that a copy was being sent to this office for the purpose of seeking an advisory opinion.
In my view, it is likely that the records in question should be made available to you, except to the extent that disclosure would constitute an unwarranted invasion of the privacy of a person other than yourself or that the information is exempted from disclosure by statute. In this regard, I offer the following comments.
You referred to a claim by the agency that it promised confidentiality to the complainant. Based on several judicial decisions, an assertion or promise of confidentiality, unless it is based upon a statute, is generally meaningless. When confidentiality is conferred by a statute, an act of the State Legislature or Congress, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of confidentiality, without more, would not in my view serve to enable an agency to withhold a record.
The primary source of your rights of access to the records in question is the Personal Privacy Protection Law. In general, that statute 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)]. For purposes of the Personal Privacy Protection Law, the term "record" is defined 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" [§92(9)].
Under §95 of the Personal Privacy Protection Law, a data subject, a person such as yourself in the context of your request, 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 or §96, which would deal with the privacy of others.
Of potential relevance to the matter is subdivision (6)(d) of §95, which states that rights of access by a data subject to not extend to:
"attorney's work product or material prepared for litigation before judicial, quasi-judicial or administrative tribunals, as described in subdivision (c) and (d) of section three thousand one hundred one of the civil practice law and rules, except pursuant to statute, subpoena, search warrant or other court ordered disclosure."
The references to the work product of an attorney and material prepared for litigation are based on subdivisions (c) and (d) §3101 of the Civil Practice Law and Rules.
While I am unaware of the specific nature of the records sought, as you know, §3101 pertains disclosure in a context related to litigation, and subdivision (a) reflects the general principle that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action..." The Advisory Committee Notes pertaining to §3101 state that the intent is "to facilitate disclosure before trial of the facts bearing on a case while limiting the possibilities of abuse." The prevention of "abuse" is considered in the remaining provisions of §3101, which describe narrow limitations on disclosure. It is also noted that it has been determined judicially that if records are prepared for multiple purposes, one of which includes eventual use in litigation, §3101(d) does not serve as a basis for withholding records; only when records are prepared solely for litigation can §3101(d) be properly asserted to deny access to records [see e.g., Westchester-Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)]. On the basis of the information that you provided, it does not appear that the records would have been prepared solely for litigation.
As suggested earlier, as a "data subject", I believe that you generally enjoy rights of access to records about yourself. However, insofar as the records pertain to or identify others, there may be privacy considerations applicable to them. To the extent that the records identify others, §96(1) of the Personal Privacy Protection Law states that "No agency may disclose any record or personal information", except in conjunction with a series of exceptions that follow. One of those exceptions, §96(1)(c), involves a case in which a record is "subject to article six of this chapter [the Freedom of Information Law], unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter". Section 89(2-a) of the Freedom of Information Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision two of this section if such disclosure is prohibited under section ninety-six of this chapter". Consequently, if a state agency cannot disclose records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the Freedom of Information Law; alternatively, if disclosure of a record would not constitute an unwarranted invasion of personal privacy and if the record is available under the Freedom of Information Law, it may be disclosed under §96(1)(c). It is clear that the identity of the complainant is known to you, for you referred to her by name in your letter to Mr. Menendez. Nevertheless, depending upon the contents of those portions of the records identifiable to her, disclosure might constitute an unwarranted invasion of her privacy. To that extent, I believe that the Agency would have the ability to make appropriate redactions.
In sum, I believe that the records sought must be disclosed to you pursuant to the Personal Privacy Protection Law, subject to the qualifications discussed in the preceding commentary pertaining to the possibility that §95(6)(d) might enable the Agency to withhold some elements of the documentation, as well as the ability to redact information identifiable to the complainant the disclosure of which would constitute an unwarranted invasion of privacy.
A copy of this opinion will be forwarded to Mr. Menendez. I hope that I have been of assistance.
Robert J. Freeman
cc: Manuel Menendez, Jr.