June 7, 2001

FOIL-AO-12722

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

I have received your letter in which you wrote that Mr. Arthur Spring, Fulton County
Attorney, suggested that you seek an advisory opinion concerning rights of access to records relating
to an investigation of County property and employees. You indicated that the matter went before
a grand jury, and Mr. Spring denied your request on the grounds that the records sought "were
compiled for law enforcement purposes", that "the allegations could not be proven and any
disclosure would constitute ‘an unwarranted invasion of personal privacy.'"

Although I am unaware of the specific contents of the records in question, I offer the
following comments.

First, as a general matter, 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.

The provision to which the County Attorney alluded initially would be §87(2)(e), which
enables an agency to withhold records or portions thereof that:

"are compiled for law enforcement purposes and which if disclosed, would:

i. interfere with law enforcement investigations or judicial
proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

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

iv. reveal criminal investigative techniques or procedures, except
routine techniques and procedures;

The ability to deny access under the exception quoted above is limited to those instances in which
the harmful effects described in subparagraphs (i) through (iv) would occur by means of disclosure.
Since the investigation apparently ended several years ago, it is likely that only subparagraph (iii)
would apply. That provision might properly be asserted to withhold records insofar as they include
names or other identifying details pertaining to informants, witnesses and perhaps others.

The second provision to which the County Attorney referred would be §87(2)(b), which
authorizes an agency to withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy." 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. 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. Further, 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].

Several of the decisions cited above, for example, Farrell, Sinicropi, Geneva Printing,
Scaccia and Powhida, dealt with situations in which determinations indicating the imposition of
some sort of disciplinary action pertaining to particular public employees were found to be available.
However, when allegations or charges of misconduct have not yet been determined or did not result
in disciplinary action, the records relating to such allegations may, according to case law, be
withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald
Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)].

If there was no determination to the effect that a public employee engaged in misconduct, I
believe that a denial of access based upon considerations of privacy would be consistent with law.

Also pertinent would be §87(2)(g), which permits 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.

Lastly, but possibly most importantly, the first ground for denial in the Freedom of
Information Law, §87(2)(a), pertains to records that "are specifically exempted from disclosure by
state or federal statute". One such statute, §190.25(4) of the Criminal Procedure Law deals with
grand jury proceedings and provides in relevant part that:

"Grand jury proceedings are secret, and no grand juror, or other
person specified in subdivision three of this section or section 215.70
of the penal law, may, except in the lawful discharge of his duties or
upon written order of the court, disclose the nature or substance of
any grand jury testimony, evidence, or any decision, result or other
matter attending a grand jury proceeding."

As such, grand jury minutes or other records "attending a grand jury proceeding" would be outside
the scope of rights conferred by the Freedom of Information Law. Any disclosure of those records
would be based upon a court order or perhaps a vehicle authorizing or requiring disclosure that is
separate and distinct from the Freedom of Information Law.

I hope that the foregoing serves to enhance your understanding of the matter and that I have
been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Arthur Spring