March 20, 2003
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
I have received the correspondence that we discussed. As I understand the situation, the Town of Stony Point was served with a subpoena by the United States Attorney for the Southern District of New York, and a law firm representing a named Town official requested the records made available by the Town pursuant to the subpoena under the Freedom of Information Law. You indicated that the following records were made available in response to the subpoena:
" Supervisor's financial disclosure statements Three vouchers.... Receipt Journals - computer generated from 1998-2003 for General Fund Disbursement Journals - computer generated from 1998- 2003 for General Fund Receipt & Disbursement Journals - computer generated for 2001, 2002 & 2003 for capital projects W-2's for S. Hurley from 1992 - 2002 Personnel file for Steven Hurley 2003 Bank Depositories and Account #'s".
In this regard, 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.
Although §87(2)(e) authorizes an agency to withhold records "compiled for law enforcement purposes" in certain circumstances, the records at issue would have been prepared in the ordinary course of business, and not for any law enforcement function. Consequently, I do not believe that that exception would be pertinent or applicable.
Second, many of the records in question would be accessible to any person. For instance, the journals reflective of financial transactions, grant applications, and records involving the Town's bank accounts, with one possible exception to be considered later, would be accessible to the general public. Some aspects of some of the records may, in my view, be withheld from the general public pursuant to §§87(2)(b) and 89(2)(b), both of which indicate that an agency may deny access when disclosure would constitute "an unwarranted invasion of personal privacy." For example, portions of financial disclosure statements, i.e., those items that are found to have no material bearing on the performance of one's official duties, as well as social security numbers, net pay and similar items contained within a W-2, could be withheld. Similarly, there may be items within a personnel file, such as medical or health insurance details and other items of an intimate personal nature, which might properly be withheld. I note that §89(2)(c) provides that disclosure does not constitute an unwarranted invasion of personal privacy: "ii. when the person to whom a record pertains consents in writing to disclosure;
iii. when upon presenting reasonable proof of identity a person seeks records pertaining to him."
Since a person cannot invade his or her own privacy, and since the law firm making the request represents the subject of many of the records, I believe that the Town must disclose those records or portions thereof to the law firm representing the subject of the records that he would have the right to obtain.
Insofar as records pertaining to the person represented by the law firm include personally identifiable to others, there may be a basis for protecting the privacy of those persons. For example, if a complaint was made concerning that person by a member of the public, the personally identifying details concerning the complainant might be withheld on the ground that disclosure would constitute an unwarranted invasion of that person's privacy.
Also relevant may be §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. If intra-agency materials reflective of opinions, as in the case of a performance evaluation, have been made available or displayed to the subject of the records in the past, I do not believe that there would be any basis for denying access. However, if internal governmental communications had not been reviewed by the subject of the records, those portions consisting of advice, opinion, recommendation and the like could in my view be withheld.
Lastly, of possible significance with respect to bank account numbers is §87(2)(i). For several years, that provision authorized an agency to withhold "computer access codes." Based on its legislative history, that provision was intended to permit agencies to withhold access codes which if disclosed would provide the recipient of a code with the ability to gain unauthorized access to information. Insofar as disclosure would enable a person with an access code to gain access to information without the authority to do so, or to shift, add, delete or alter information, i.e., to make electronic transfers, I believe that a bank account or ID number could justifiably have been withheld. Section 87(2)(i) was recently amended in recognition of the need to guarantee that government agencies have the ability to ensure the security of their information and information systems. That provision currently states that an agency may withhold records or portions of records which "if disclosed, would jeopardize an agency's capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures." If disclosure of a bank account number could enable a person to gain access to or in any way alter or adversely affect an agency's electronic information or electronic information systems, I believe that it may justifiably be withheld.
I hope that I have been of assistance.
Robert J. Freeman