May 13, 1996
Mr. George Freeman
The New York Times Company
229 West 43 Street
New York, NY 10036
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 correspondence, unless otherwise indicated.
Dear Mr. Freeman:
As you are aware, I have received your letter of April 25. You have sought an advisory opinion concerning a request made by the New York Times for records of the New York City Departments of Investigation and Buildings relating to the suspension of 42 elevator inspectors employed by the Department of Buildings. Specifically, the Times has requested the names of the those suspended and the reasons for the suspensions.
According to your letter and related materials, an investigation led by the U.S. Attorney will determine whether criminal charges will be brought, and I have received a letter from Richard W. Mark, First Deputy Commissioner of the Department of Investigation, explaining the City's position and its rationale for the blanket denial of the Times' request.
Mr. Mark has contended that "[r]elease of the requested documents would interfere directly with an ongoing criminal investigation, and with ongoing disciplinary proceedings." Citing judicial decisions rendered under the federal Freedom of Information Act, he added that:
"Courts have upheld the assertion of the law enforcement exemption to deny requests for records that, if disclosed, could reveal the direction of an investigation, show the priority accorded to different investigative steps, identify entities assisting in the investigation, or would give potential subjects a basis for interfering in the continuing investigation."
In his letter to me, Mr. Mark specified that his agency "will not comment on or describe the nature of the ongoing criminal investigation involving the elevator inspectors" and asserted that "[n]o reading of FOIL would require an agency to release any law enforcement records in the midst of a pending investigation." He also indicated that no charges have yet been determined or initiated with respect to the suspended elevator inspectors, and he has contended that advisory opinions rendered by this office support his position.
I would agree with Mr. Mark's contention that records compiled for law enforcement purposes that would interfere with an investigation if disclosed may be withheld. The Times, however, did not request the kinds of records which if disclosed would interfere with an investigation, and in fact, you specified in your letter that the "[T]imes acknowledges that it is not entitled to documents which would interfere with law enforcement investigations." Nevertheless, I disagree with Mr. Mark's statement that "no reading" of the statute "would require an agency to release any law enforcement records in the midst of a pending investigation." Law enforcement records are frequently disclosed to the public during law enforcement investigations. Often disclosures concerning investigations are made to the public and the news media in an effort to acquire information or assist in the course of an investigation. Often arrests are made and the names of those taken into custody are disclosed, even though those matters may relate to a continuing investigation. In short, in view of its breadth, I believe that Mr. Mark's assertion is inaccurate.
The language of the Freedom of Information Law itself indicates that the ability to withhold records is based upon the harm that could arise as a result of disclosure. Nothing in that language suggests that all law enforcement records relating to an ongoing investigation may justifiably be withheld. The key provision, §87(2)(e), enables an agency to withhold records 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."
Only to the extent that disclosure would result in the harmful effects described in subparagraphs (i) through (iv) can an agency justify withholding records pursuant to §87(2)(e). As we agreed during our initial conversation of the matter and as you indicated in your letter, those who have been suspended are fully aware of their suspensions. If a matter is under investigation and premature disclosure would enable possible lawbreakers to evade detection or flee, I would agree that disclosure would interfere with the investigation. However, in this instance, it is clear that New York City agencies have contacted the individuals involved and have informed them of the action taken against them, as well perhaps as the reasons for that action. Based on a Times article, there has been disclosure of the general nature of misconduct in which the suspended employees engaged. According to the article:
"'The nature of the misconduct was not to pretend that it was safe when it was falling down,' one official said. Instead, the case involved inspectors who extorted money from building contractors by citing the buildings with minor infractions and offered to help cut through the city bureaucracy in exchange for cash payments...
"The suspensions are a result of a three-year investigation involving a sting operation in which city investigators posed as contractors who would offer bribes to elevator inspectors, law enforcement officials said. On Wednesday night, agents from the Federal Bureau of Investigation and the city's Department of Investigation fanned out across the city to question some of the inspectors. Yesterday morning, the 42 inspectors were suspended when they went to work."
Based on the foregoing, general information about the investigation has been disclosed. Disclosure of equivalent information, including the names of those suspended, could not in my view interfere with the investigation. Similarly, if the reasons for the suspensions have been made known to those suspended, it is difficult to envision how disclosure of that information would have an adverse impact upon the criminal investigation that is currently being led by the United States Attorney.
Mr. Mark has also contended that disclosure of the identities of those suspended and the reasons for their suspensions would constitute "an unwarranted invasion of personal privacy" pursuant to §87(2)(b) of the Freedom of Information Law. 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. First, 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. Second, 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].
Also relevant to an analysis of the matter is §87(2)(g), which states that an agency may 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.
In terms of the judicial interpretation of the Freedom of Information Law, I point out that in situations in which allegations or charges have resulted in the issuance of a written reprimand, disciplinary action, or findings that public employees have engaged in misconduct, records reflective of those kinds of determinations have been found to be available, including the names of those who are the subjects of disciplinary action [see Powhida v. City of Albany, 147 AD 2d 236 (1989); also Farrell, Geneva Printing, Scaccia and Sinicropi, supra]. When charges have not yet been determined or did not result in disciplinary action, the records relating to the charges may, in my view, 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)].
In the context of the issue at hand, I must admit that I am somewhat confused by Mr. Mark's statements. While Mr. Mark referred to the possibility of some further administrative disciplinary proceedings, he specified that no charges have been initiated to date. Nevertheless, disciplinary action, i.e., the suspensions, has in fact occurred and reflects final agency determinations. Those determinations are administrative in nature and are separate and distinct from any determinations of criminal charges that might later ensue. From my perspective, it is not unusual that records reflective of disciplinary action taken against public employees are disclosed even though criminal proceedings relating to the same events may later follow. In my view, if there are written reasons for the suspensions that have been made known to those suspended, those records constitute final agency determinations which must be disclosed [see §87(2)(g)(iii)] and would not, if disclosed, constitute an unwarranted invasion of personal privacy. On the other hand, in situations in which charges have been initiated but no action, i.e., a suspension, or determination regarding the charges has been made or taken, I believe that the charges may be withheld.
In a related vein, you contended that "a suspension is a governmental action undeserving of privacy protection." I generally agree. Although a suspension in some instances might not reflect an agency's final determination of a matter, a suspension would in my view represent factual information that must be made available under §87(2)(g)(i). Further, with respect to privacy, it has been established that attendance records of public employees must be disclosed. In Capital Newspapers v. Burns [109 AD 2d 292, aff'd 67 NY 2d 562 (1986)], it was held that records indicating days and dates of sick leave claimed by a particular police officer must be made available. On the basis of that decision, which was reached unanimously by both the Appellate Division and the Court of Appeals, it is clear in my opinion that time sheets, attendance records and similar documentation, including those elements that indicate the reasons for absences, must be disclosed. In this instance, I believe that an enterprising reporter or member of the public could request and obtain the attendance records of all elevator inspectors employed by the City and ascertain from those records the identities of those who were suspended. That being so, I do not believe that disclosure of the identities of those suspended would constitute an unwarranted invasion of personal privacy.
It is noted, too, that in an early decision rendered under the Freedom of Information Law in which it was determined that the names of police officers who were reprimanded must be disclosed, it was stated that "Disclosure, of course, will reveal the names of the police officers who were reprimanded but also let be known, by implication, which others were not censured. Disclosure of the written reprimands will not harm the overall public interest" [Farrell, supra, 908-909]. In the case of matter at hand, since 42 of the 58 elevator inspectors employed by the City were suspended, disclosure of the identities of those suspended will provide the public, also by implication, with information as to those who have performed their duties appropriately.
Mr. Mark referred to the possibility of disciplinary proceedings that may be conducted pursuant to §75 of the Civil Service Law and wrote that the City is "properly protecting the confidentiality of any pending proceeding." Again, there is no indication in any of the materials that charges have been initiated or that such proceedings may be commenced. Moreover, there is nothing in §75 that specifies that hearings must be held in a confidential manner. On the contrary, the Court of Appeals has found that administrative and quasi-judicial proceedings are presumptively open to the news media [see Herald Co., Inc. v. Weisenberg, 59 NY 2d 378]. While the decision cited above did not deal with a disciplinary proceeding of a public employee, I believe that it stands for the principle that administrative proceedings must be conducted open to the public, unless there is a "compelling reason" for closure [id. at 383].
Lastly, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:
"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."
In another decision rendered by the Court of Appeals, it was held that:
"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].
In the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:
"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).
In sum, it is my view that the names of those suspended and the reasons for the suspensions, if they have been disclosed to the employees, must be made available.
I hope that I have been of assistance.
Robert J. Freeman
cc: Richard W. Mark