March 21, 1997
Mr. Zachary L. Karmen
Acting Appeals Officer
Onondaga County Dept. of Social Services
Legal Division 421
Syracuse, NY 13202
Dear Mr. Karmen:
I appreciate receipt of your determination of an appeal by Mr. Clyde Ohl rendered on February 24 pursuant to §89(4)(a) of the Freedom of Information Law. While I am in general agreement with your rationale and the outcome, there is one area in which I believe your reliance as a basis for a denial of access is misplaced.
Specifically, at the end of the determination, reference was made to "executive privilege" and the decision rendered in Cirale v. 80 Pine St. Corp. [35 NY2d 113 (1974)]. As you may be aware, Cirale was decided after the enactment but before the effective date of the Freedom of Information Law in 1974. In 1977, the original enactment was repealed and replaced with the current version of that statute, which became effective in 1978. Soon after the change in the law, the Court of Appeals appears to have abolished the governmental privilege in the context of requests made 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" [Doolan v. BOCES, 48 NY2d 341, 347]. In short, either records or portions thereof fall within the grounds for denial appearing in §87(2) or they do not; if they do not, there would be no basis for denial, notwithstanding a claim based on an assertion of executive or governmental privilege.
I do not believe that the foregoing would in any way require a change in the result of your determination, and I hope that I have been of assistance.
Robert J. Freeman