December 20, 2013
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuring staff advisory opinion as based solely upon the information presented in your correspondence.
Dear Mr. Chauvin:
I have received your letter in which you sought an advisory opinion in your capacity as Deputy Town Attorney for the Town of Halfmoon.
Your correspondence was precipitated by a request made pursuant to the Freedom of Information Law (FOIL) by Brendan J. Lyons, a reporter for the Albany Times-Union, for “copies of any subpoenas, letter-requests, emails or other documents related to any law enforcement agency’s request for records or interviews.” It was added that the records at issue relate in part “to an ongoing inquiry being conducted by the FBI” that “may have been made upon a town office or individual town officials.” The request also includes “a copy of a business card of a law enforcement official.” You specified that the request does not involve the records that were sought pursuant to subpoenas and that you are unaware of the identities of Town officers or employees who might have questioned in the course of an investigation, but that the “Subpoenas/letters contain specific language indicating that they are confidential, and not to be disclosed.” Mr. Lyons’ request was denied on the basis of §87(2)(e) of FOIL.
The fact and focus of the investigation to which you referred have become widely reported and well-known. News reports that preceded your letter indentified Melinda “Mindy” Wormuth, then Town Supervisor, as the target of the investigation and indicated that she was charged with the commission of various crimes by both the attorney General and the United States Attorney. It has also been reported that Ms. Wormuth resigned from her office on November 23. She also served as the Town’s FOIL appeals officer, and it is assumed that a new appeals officer has been designed.
In this regard, I offer the following comments.
First, as you are aware, FOIL 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 authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
The Court of Appeals expressed its general view of the intent of the Freedom of Information Law in 1996 in Gould v. NYC Police Department (89 NY2d 267), 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[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 certain records could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, '87(2)(g), an exception separate from those cited in response to your requests. 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.).
Second, a request for or promise of confidentiality is irrelevant in determining the extent to which records may be withheld under the FOIL. The Court of Appeals has held that a request for or a claim or promise of confidentiality is all but meaningless; unless one or more of the grounds for denial appearing in the Freedom of Information Law may appropriately be asserted, the record sought must be made available. In Washington Post v. Insurance Department [61 NY2d 557 (1984)], the controversy involved a claim of confidentiality with respect to records prepared by corporate boards furnished voluntarily to a state agency. The Court of Appeals reversed a finding that the documents were not "records" subject to the Freedom of Information Law, thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Moreover, it was determined that:
“Respondent’s long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature’s definition of ‘records’ under FOIL. The definition does not exclude or make any reference to information labeled as ‘confidential’ by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt (see Matter of John P. v Whalen, 54 NY2d 89, 96; Matter of Fink v Lefkowitz, 47 NY2d 567, 571-572, supra; Church of Scientology v State of New York, 61 AD2d 942, 942-943, affd 46 NY2d 906; Matter of Belth v Insurance Dept., 95 Misc 2d 18, 19-20). Nor is it relevant that the documents originated outside the government...Such a factor is not mentioned or implied in the statutory definition of records or in the statement of purpose...”
The Court also concluded that “just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption” (id., 567).
Third, the exception upon which the Town relied to deny the request authorizes an agency to withhold records “compiled for law enforcement purposes to the extent that disclosure 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….”
In consideration of the disclosure already made and known to the public, particularly the nature of the state and federal charges, I believe that the ability to justify a denial of access is limited and questionable. Even in situations in which there may not be publicity associated with an investigation, it may be difficult to justify a denial of access.
The only element of §87(2)(e) that appears to be relevant in determining rights of access is subparagraph (i) concerning disclosure that would interfere with law enforcement investigations or judicial proceedings. With respect to subpoenas, the time of a request in my opinion bears upon the ability to deny access. By means of analogy, if a request is made for a search warrant before the warrant is executed, and the warrant is disclosed, the target of an investigation might have the opportunity to alter or destroy evidence, or perhaps leave a jurisdiction. In that situation, it is clear that disclosure would be premature and interfere with the investigation. After the warrant is served, however, the target becomes aware of the nature of the information or evidence sought, and because that is so, the effect of disclosure changes, and the ability to justify a denial of access may diminish or disappear.
In short, if the focus of an investigation is made aware of the information or evidentiary material sought via a warrant that has been executed or, as in this instance, a subpoena that has been served, it is difficult to envision how disclosure at that juncture would interfere with an investigation or judicial proceeding.
Lastly, since the request includes “copy of a business card of a law enforcement official”, I point out that FOIL pertains to all government agency records and defines the term “record” in §86(4) to include “any information kept, held, filed, produced or reproduced by, with or for an agency…in any physical form whatsoever…” Based on the definition, if indeed the Town possesses a “business card of a law enforcement official” that relates to the Wormuth investigation, the card would constitute a “record” subject to rights of access.
It is possible that disclosure of a business card might conceivably suggest that a person is under investigation in relation to a particular kind of criminal activity, i.e, the business card of an agency of the Drug Enforcement Investigation or Special Narcotics Unit, might enable an individual to frustrate or perhaps “interfere” with an investigation. However, absent that degree of detail or focus appearing on a business card, disclosure of business cards of law enforcement officials would likely be innocuous. In the context of the matter at issue and in consideration of attendant facts and the knowledge that various law enforcement agencies have been involved in the matter, I do not believe that a business card of a law enforcement official would fall within any of the exceptions to rights of access appearing in §87(2) of FOIL. That being so, any such business card would, in my opinion, be accessible to the public under FOIL.
I hope that I have been of assistance.
Robert J. Freeman
cc: Brendan J. Lyons