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OML-AO-3784

April 22, 2004

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

As you are aware, I have received your letter in which you sought an advisory opinion relating to requests made to Rensselaer County under the Freedom of Information Law.

One request involved "records pertaining to the Rensselaer County Local Conditional Release Commission and its decision to vote to release inmate Mary Beth Anslow." You also referred in that request to the requirement that a record indicate the manner in which each Commission member voted, and you focused on records pertaining to the Commission’s deliberations. In the other request, you asked for "records pertaining to any and all decisions [made by the Commission] to release inmates within the past five years." The County denied access to the records in question on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" in accordance with §87(2)(b) of the Freedom of Information Law. You also referred to the §96 of the Public Officers Law as it relates to inmates.

In this regard, I offer the following comments.

First, §96 is part of the Personal Privacy Protection Law, which is Article 6-A of the Public Officers Law. That statute applies only to state agencies [see definition of "agency", §96(1)] and does not apply to a county or its records. In contrast, the Freedom of Information Law, based in its definition of the term "‘agency", applies to entities of both state and local government.

Second and perhaps most importantly, 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. 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 exceptions to rights of access that follow. The phrase quoted in the preceding sentence indicates that a single record may include information accessible to the public, as well as information that may be withheld. It also requires that an agency review records sought, in their entirety, to determine which portions, if any, may properly be withheld.

It is also noted that the Court of Appeals, the State’s highest court, has stressed that the Freedom of Information Law should be construed expansively. For instance, in Gould v. New York City Police Department [87 NY 2d 267 (1996)], the Court reiterated its general view of the intent of the Freedom of Information Law, stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the agency contended that "complaint follow up reports" could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception different from that cited in response to your request. The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In the context of your request, all of the records that you requested have been withheld. While I am not suggesting that they must be disclosed in toto, based on the direction given by the Court of Appeals, the records must be reviewed for the purpose of identifying those portions that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision, an agency may deny access records under an exception "as long as the requisite particularized showing is made" (id., 277).

With respect to the privacy of inmates, while some aspects of records, such as those containing intimate or highly personal details, might properly be withheld based on considerations of privacy and §87(2)(b), others, in my view, must be disclosed. In a case involving a request for videotapes made under the Freedom of Information Law, it was unanimously found by the Appellate Division that:

"...an inmate in a State correctional facility has no legitimate expectation of privacy from any and all public portrayal of his person in the facility...As Supreme Court noted, inmates are well aware that their movements are monitored by video recording in the institution. Moreover, respondents' regulations require disclosure to news media of an inmate's 'name *** city of previous residence, physical description, commitment information, present facility in which housed, departmental actions regarding confinement and release' (7 NYCRR 5.21 [a]). Visual depiction, alone, of an inmate's person in a correctional facility hardly adds to such disclosure" [Buffalo Broadcasting Company, Inc. v. NYS Department of Correctional Services, 155 AD 2d 106, 111-112 (1990)].

Nevertheless, the Court stated that "portions of the tapes showing inmates in states of undress, engaged in acts of personal hygiene or being subjected to strip frisks" could be withheld as an unwarranted invasion of personal privacy (id., 112), and that "[t]here may be additional portrayals on the tapes of inmates in situations which would be otherwise unduly degrading or humiliating, disclosure of which 'would result in *** personal hardship to the subject party' (Public Officers Law § 89 [2] [b] [iv])" (id.).

In another case involving videotapes of events occurring at a correctional facility, in the initial series of decisions relating to a request for videotapes of uprisings at a correctional facility, it was determined that a blanket denial of access was inconsistent with law [Buffalo Broadcasting Co. v. NYS Department of Correctional Services, 155 AD2d 106]. Following the agency's review of the videotapes and the making of a series of redactions, a second Appellate Division decision affirmed the lower court's determination to disclose various portions of the tapes that depicted scenes that could have been seen by the general inmate population. Other portions, such as those showing "strip frisks" and the "security system switchboard", were found to have been properly withheld on the grounds, respectively, that disclosure would constitute an unwarranted invasion of personal privacy and endanger life and safety [see 174 AD2d 212 (1992)].

While the records sought are not videotapes or similar depictions, I believe that the principles discussed in the decisions cited above are applicable, that a blanket or categorical denial of access to the records sought is inconsistent with law, and that the ability to protect an inmate’s privacy is far from absolute.

I point out that the fact of person’s commitment in a county jail must be included in a record accessible to the public that includes a variety of information. Specifically, §500-f of the Correction Law, which pertains to county jails, states that:

"Each keeper shall keep a daily record, to be provided at the expense of the county, of the commitments and discharges of all prisoners delivered to his charge, which shall contain the date of entrance, name, offense, term of sentence, fine, age, sex, place of birth, color, social relations, education, secular and religious, for what any by whom committed, how and when discharged, trade or occupation, whether so employed when arrested, number of previous convictions. The daily record shall be a public record, and shall be kept permanently in the office of the keeper."

In short, a variety of information concerning any person confined in a county jail is clearly public.

Consideration should also be given, in my view, to the privacy of others. While I am not familiar with the nature of the records used in the Commission’s deliberative process, they might include letters or similar communications from friends, relatives, neighbors, etc. who expressed their opinions concerning the release of Ms. Anslow or other inmates. I believe that personally identifying details pertaining to members of the public who transmitted such communications may be deleted on the ground that disclosure would constitute an unwarranted invasion of those persons’ privacy.

Also potentially relevant is §87(2)(g), which 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.

When Commission members transmit opinions or recommendations among one another, or when other government officers or employees offer opinions concerning an inmate’s release, I believe that those opinions may be withheld. For instance, in a case in which a district attorney sent a recommendation to the Parole Board regarding the release of a certain inmate, it was determined that the record could be withheld [Ramalho v. Bruno, 273 AD2d 521 (2000)]. However, statistical or factual information contained within those kinds of communications must generally be disclosed pursuant to §87(2)(g)(i), and in addition, §87(2)(g)(iii) requires that "final agency...determinations" be made available. From my perspective, any determination by the Commission to grant or deny an inmate’s release would constitute a final agency determination that must be disclosed. Moreover, assuming that a determination of that nature does not include intimate, personal information, I believe that it would be available in its entirety. If it does contain intimate, personal information, I believe that that portion may be redacted.

Third, although you did not raise any issue directly relating to the Open Meetings Law, I believe that its provisions are pertinent and related to the records sought. As you may be aware, that statute is applicable to public bodies, and §102(2) defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

Based on the provisions of §§271 and 272 of the Correction Law, which respectively describe the creation and organization of local conditional release commissions and their functions, powers and duties, it is clear in my view that those entities constitute public bodies that fall within the coverage of the Open Meetings Law. While it is likely that some of the Commission’s discussions and deliberations may validly occur in private, other aspects of its duties must, in my view, be performed in public and result in the creation of records accessible to the public.

I point out that there are two vehicles that may authorize a public body to discuss public business in private. One involves entry into an executive session. Section 102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded, and the Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:

"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."

As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and the motion must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.

In the context of the activities of the Commission, it would appear that only one of the grounds for entry into executive session, §105(1)(f), would be pertinent to its duties. That provision authorizes a public body to conduct an executive session to discuss:

"the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation."

I would conjecture that a local conditional release commission might in some instances discuss, for example, the medical history of an inmate or perhaps a victim or that person’s relations. In that event, I believe that an executive session could properly be held.

The other vehicle for excluding the public from a meeting involves "exemptions," and §108 of the Open Meetings Law contains three exemptions. When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect. Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session.

Relevant in the context of the matter is §108(1) of the Open Meetings Law, which exempts from the coverage of that statute "judicial or quasi-judicial proceedings..." From my perspective, it is often difficult to determine exactly when public bodies are involved in a quasi-judicial proceeding, or where a line of demarcation may be drawn between what may be characterized as quasi-judicial, quasi-legislative or administrative functions. I believe, however, that one of the elements of a quasi-judicial proceeding is the authority to take final action. While I am unaware of any judicial decision that specifically so states, there are various decisions that infer that a quasi-judicial proceeding must result in a final determination reviewable only by a court. In a decision that described a particular body indicated that "[T]he Board is a quasi-judicial agency with authority to make decisions reviewable only in the Courts" [New York State Labor Relations Board v. Holland Laundry, 42 NYS 2d 183, 188 (1943)]. Further, in a discussion of quasi-judicial bodies and decisions pertaining to them, it was found that "[A]lthough these cases deal with differing statutes and rules and varying fact patterns they clearly recognize the need for finality in determinations of quasi-judicial bodies..." [200 West 79th St. Co. v. Galvin, 335 NYS 2d 715, 718 (1970)].

According to §272 of the Correction Law, a local conditional release commission has the power to determine that certain persons sentenced within a county are eligible for conditional release, to revoke conditional release, and to authorize its members to administer oaths and take testimony of persons under oath. In consideration of those powers, I believe that the deliberations of such a commission leading to a determination to grant or revoke conditional release may be characterized as quasi-judicial and exempt from the requirements of the Open Meetings Law. Nevertheless, its other business, such as policy making, the development of rules and procedures, and the taking of action could not be so characterized in my opinion, and could only validly occur during meetings held in compliance with the Open Meetings Law. As stated in Orange County Publications v. City of Newburgh:

"there is a distinction between that portion of a meeting...wherein the members collectively weigh evidence taken during a public hearing, apply the law and reach a conclusion and that part of its proceedings in which its decision is announced, the vote of its members taken and all of its other regular business is conducted. The latter is clearly non-judicial and must be open to the public, while the former is indeed judicial in nature, as it affects the rights and liabilities of individuals" [60 AD 2d 409, 418 (1978)].

In short, while I believe that the Commission may deliberate in private when considering the release of an individual, it can take action or vote only at a meeting held in accordance with the Open Meetings Law.

Section 106 of that statute requires the preparation of minutes and states that:

"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

In view of the foregoing, a motion to enter into executive session, as well as any other action taken during an open meeting, must be memorialized and included within minutes. Further, as a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)]. If action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the executive session be prepared.

It is noted that minutes of executive sessions need not include information that may be withheld under the Freedom of Information Law. From my perspective, when a public body makes a final determination during an executive session, that determination will, in most instances, be public. While the Commission might in some instances have the authority to take action during executive session, for reasons described earlier, I do not believe that a record indicating the nature of its action, i.e., to grant or deny conditional release, could justifiably be withheld under the Freedom of Information Law.

Lastly, the Freedom of Information Law has since its enactment included what some have considered an "open vote" requirement. Section 87(3)(a) provides that:

"Each agency shall maintain:

(a) a record of the final vote of each member in every agency proceeding in which the member votes..."

Based upon the foregoing, when a final vote is taken by an agency, such as the Commission, a record must be prepared that indicates the manner in which each member who voted cast his or her vote. Ordinarily, records of votes will appear in minutes.

In terms of the rationale of §87(3)(a), it appears that the State Legislature in precluding secret ballot voting sought to ensure that the public has the right to know how its representatives have voted individually with respect to particular issues. Although the Open Meetings Law does not refer specifically to the manner in which votes are taken or recorded, I believe that the thrust of §87(3)(a) of the Freedom of Information Law is consistent with the Legislative Declaration that appears at the beginning of the Open Meetings Law and states that:

"it is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants."

Moreover, in an Appellate Division decision that was affirmed by the Court of Appeals, it was found that "The use of a secret ballot for voting purposes was improper." In so holding, the Court stated that: "When action is taken by formal vote at open or executive sessions, the Freedom of Information Law and the Open Meetings Law both require open voting and a record of the manner in which each member voted [Public Officers Law §87[3][a]; §106[1], [2]" Smithson v. Ilion Housing Authority, 130 AD 2d 965, 967 (1987); aff'd 72 NY 2d 1034 (1988)].

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Conditional Release Commission
Thomas N. Cioffi