October 9, 2014
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.
We have received your letter and the materials attached to it. You are seeking an advisory opinion concerning requests made by your client, Capital New York, and its reporter, Jimmy Vielkind, to the Executive Chamber pertaining to the schedule and activities of the Governor.
The latest correspondence appended to your letter consists of a response on September 5 to Jimmy Vielkind’s request of January 30 in which he sought:
“records or portions thereof pertaining to:
(1) The schedule and activities of Gov. Andrew Cuomo from September 19-20, 2013.
(2) The schedule and activities of Gov. Andrew Cuomo from January 22-25, 2014.”
Mr. Vielkind submitted an additional request on February 19 for:
“the schedule of daily activities of Governor Andrew Cuomo on September 15-16, 2013.”
The initial request related to a fund-raising event in California, and the latter, according to your letter, was a similar event held “possibly in Albany.”
In the September 5 response, the Chamber’s Records Access Officer and FOIL Counsel wrote as follows:
“…we only possess documents that are exempt from disclosure under FOIL because they are inter-agency or intra-agency materials. The records you seek are internal and deliberative draft documents…
“In addition, some of the exempt documents also contain personal or security-sensitive information. This information is separately exempt pursuant to Public Officers Law §§87(2)(b)and (f).”
She added that “none of these exempt documents reflect any official government events that are not otherwise listed on the Governor’s public schedule available…on the CitizensConnects website. Thus, we have provided you with all publicly available records under FOIL.”
Your letter described a series of correspondences and interactions between Mr. Vielkind and officials in the Chamber. However, at this juncture, the records sought have not been disclosed.
I note that I informed your colleague that I contacted an attorney at the Chamber and was told that an informal offer to inspect certain records was made to Mr. Vielkind on June 19. According to your colleague, Mr. Vielkind agreed to discuss the offer with his editor and did not withdraw his request.
In this regard, I offer the following comments.
First, the characterization of documentation as “draft” is not determinative of rights of access, nor does it remove documentation from the coverage of the Freedom of Information Law (FOIL).
FOIL pertains to all agency records, and §86(4) of that statute defines the term "record" expansively to mean:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
In consideration of the breadth of the definition, it is clear that a “draft” maintained by or for an agency constitutes a “record” that is subject to rights of access conferred by FOIL.
In a case in which an agency claimed, in essence, that it could choose which documents it considered to be "records" for purposes of the Freedom of Information Law, the state's highest court rejected that contention. As stated by the Court of Appeals:
"...respondents' construction -- permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL -- would be inconsistent with the process set forth in the statute. In enacting FOIL, the Legislature devised a detailed system to insure that although FOIL's scope is broadly defined to include all governmental records, there is a means by which an agency may properly withhold from disclosure records found to be exempt (see, Public Officers Law §87; §89,. Thus, FOIL provides that a request for access may be denied by an agency in writing pursuant to Public Officers Law §89(3) to prevent an unwarranted invasion of privacy (see, Public Officers Law §89) or for one of the other enumerated reasons for exemption (see, Public Officers Law §87). A party seeking disclosure may challenge the agency's assertion of an exemption by appealing within the agency pursuant to Public Officers Law §89(4)(a). In the event that the denial of access is upheld on the internal appeal, the statute specifically authorizes a proceeding to obtain judicial review pursuant to CPLR article 78 (see, Public Officers Law §89[b]). Respondents' construction, if followed, would allow an agency to bypass this statutory process. An agency could simply remove documents which, in its opinion, were not within the scope of the FOIL, thereby obviating the need to articulate a specific exemption and avoiding review of its action. Thus, respondents' construction would render much of the statutory exemption and review procedure ineffective; to adopt this construction would be contrary to the accepted principle that a statute should be interpreted so as to give effect to all of its provisions...
"...as a practical matter, the procedure permitting an unreviewable prescreening of documents -- which respondents urge us to engraft on the statute -- could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate FOIL request. There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it 'purely private'. Such a construction, which could thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253-254 (1987)].
In short, insofar as documentation is maintained by or for an agency, a claim that it is not a record subject to FOIL would in my opinion conflict with the interpretation of that statute by the State's highest court. Again, there is no exception nor is there reference in the Freedom of Information Law to “drafts” or materials characterized as “unofficial.” Any document maintained by or for an agency constitutes a “record” falling within the coverage of FOIL.
Second, as a general matter, 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 (l) of the Law. From our perspective, two of the grounds for denial are relevant to an analysis of rights of access.
The reference in the September 5 response to inter-agency or intra-agency materials relates to §87(2)(g), which enables 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, only those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could be withheld.
“Deliberative” materials may properly be withheld. Those kinds of materials have been described by the Court of Appeals as those involving the expression or exchange of advice, opinions, recommendations, ideas and the like [Gould v. NYC Police Dept., 89 NYd 267, 277 (1996)]. Therefore, insofar as the records at issue include entries or communications of that nature, which typically are written in narrative form, I would agree that they may be withheld. Often inter-agency and intra-agency materials contain both factual information as well advice or opinions. In those instances, those latter portions consisting of advice or opinions may be redacted, but the remainder must, according to the Court of Appeals be disclosed. The Court in Gould found that an agency’s “blanket” denial of access was inconsistent with FOIL (id., 275), and that records must be reviewed in their entirety to determine which portions, if any, may justifiably be redacted.
However, schedules of activities, appointment books, calendars and the like typically consist of brief, factual entries reflective of the time, date and nature of events or activities. Insofar as the records sought contain information of that nature, I believe that the information may be characterized as “factual” data that must be disclosed pursuant to §87(2)(g)(i), unless a separate exception may properly be asserted to deny access (id.). In a decision cited by the Court of Appeals in Gould, reference was made to records containing a chronology of events determined by the Appellate Division to constitute factual information available under the same provision as that cited in the preceding sentence [Ingram v. Axelrod, 90 AD2d 568, 569 (1982)]. To the extent that the records sought are analogous to a chronology of events, they would not be deliberative, but rather factual in nature.
Similarly, other records that reflect facts relating to appointments or events, i.e., confirmations of attendance, travel records, rsvp’s and the like would be factual in nature and, therefore, available.
The second exception to rights of access referenced in the response involves §87(2)(b), which authorizes an agency to withhold records the disclosure of which 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 officers and employees. It is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those persons are required to be more accountable than others. Second, the courts have found that, as a general rule, records that are relevant to the functions of public officers and employees are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Gannett v. Monroe County, 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); 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 unrelated to one’s 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].
In my opinion, schedules indicating appointments, meetings and the like in which a public officer or employee engages are relevant to the performance of that person's official duties. Therefore, to the extent that the records in question pertain to a governor in that person’s role as governor, or as a candidate for re-election, I believe that disclosure would result in a permissible rather than an unwarranted invasion of personal privacy. A governor’s participation in fund-raising activities, even though those activities may not be open to the general public, implicates that person’s performance in office. The fact that he interacts with donors or potential donors is, therefore, a matter of public interest and concern.
I direct your attention to a decision that described the intent and utility of the Freedom of Information Law. Specifically, in Capital Newspapers v. Burns, the Court of Appeals, in considering the routine functioning of government held 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" (supra, 565-566).
This is not intended to suggest that every entry in an appointment calendar or similar document must be disclosed. Entries concerning a medical appointment, the birthday of a family member or a haircut, for example, are unrelated to one’s activities as a public officer or employee. Those kinds of notations may in my view may be redacted based on §87(2)(b).
That exception may also be pertinent insofar as the documentation identifies others and contains purely private, personal information. The Court of Appeals in construing the phrase “unwarranted invasion of personal privacy” has held that the standard involves “the sort of detail…that would ordinarily and reasonably be regarded as intimate, private information” [Hanig v. Department of Motor Vehicles, 79 NY2d 106, 112 (1992)]. If, for instance, an entry identifies a person whom a public officer or employee is scheduled to meet, and it indicates that he or she is allergic to nuts or has a child with a particular medical condition, I believe that entries or notations of that nature may be redacted on the ground that disclosure would result in an unwarranted invasion of personal privacy.
The remaining exception cited in the response, §87(2)(f), authorizes an agency to deny access to records or portions of records the disclosure of which “could endanger the life or safety of any person.”
While a governor’s schedule detailing events occurring in the future might in some instances be withheld with justification, it is difficult to envision how disclosure of items of that nature sought months after the events have occurred would create jeopardy or danger if disclosed. I recognize, however, that some communications or notations relating to those events involving the State Police or other persons or entities involved in security might, if disclosed, compromise security in the future and, therefore, endanger life or safety. Nevertheless, again, in consideration of the time that has passed since the events that are the subject of the request, as well as the fact that one of the events occurred in California, whether or the extent to which it would be reasonable to conclude that disclosure could endanger life or safety or, therefore, justify the assertion of §87(2)(f) is questionable.
Significantly, there is judicial precedent relating to the kinds of records that have been requested. In Kerr v. Koch (Supreme Court, New York County, NYLJ, February 1, 1988), a newspaper reporter was granted access to the "public schedules" of New York City's former Mayor, Edward Koch. However, other more detailed "private" schedules were withheld. In that decision, the court posed the following question: "Will granting access to the Mayor's appointment calendars without redaction urged by respondents as proper, result in an unwarranted invasion of personal privacy?" In response to the question, it was stated that:
"Avoidance of disclosure under FOIL cannot be had by simply placing in documents the unilateral description, 'private' as this would '*** thwart the entire objective of FOIL by creating an easy means of avoiding compliance.'"
Further, in granting access to the records, the Court found that:
"It appears that some private appointment calendar material has been produced for petitioner, with redactions that reduce the worthiness of those documents.
"There is no suggestion of scandal attached to those who are associates of the Mayor, whether they be servants of the public or private individuals. Accordingly there is nothing unwarranted, excessive or unjustifiable in revealing the names of those with whom the Mayor had appointments from time to time. As a public person invested with a public trust, he should be accountable for his associations."
"The passion for secrecy found in the redaction of names from private schedules of the respondents, where luncheon meetings have been billed to the Mayor's expense account, is not justified under the circumstances described here. Mixed, as they appear to be with public documents and records, all kept by the agency of the Mayor's Office, the private schedules are vulnerable under the Freedom of Information Law. Otherwise, liberal construction of FOIL is forfeited and the exemptions in the law are at the mercy of a narrow interpretation."
In the context of the records at issue, with the exception of the information referenced earlier in this opinion in the analysis of the grounds for denial of access cited in the response to the request, I believe that they must be disclosed to comply with FOIL.
Next, with respect to Mr. Vielkind’s decision to seek copies of records rather than inspecting records, FOIL provides applicants for records with the right to choose the form in which records are made available when an agency has the ability to do so with reasonable effort. Section 89(5)(a) of FOIL states in part that “[a]n agency shall provide records on the medium requested by a person, if the agency can reasonably make such copy…” Based on that provision, an applicant may inspect records accessible under FOIL or obtain copies of the records, on paper, on disk, or via email [see §89(3)(b)] when an agency can do so with reasonable effort.
Lastly, because Mr. Vielkind’s requests were made several months ago, and because he has not yet either obtained copies of the records or received a final determination regarding the matter, it is emphasized that FOIL provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied..."
In order to attempt to ensure that agencies respond to requests in a timely manner, new language was added to that provision on May 3 (Chapter 22, Laws of 2005) stating that:
"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."
Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgment is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a “date certain”, a specific date by which it will grant access to the records sought in whole or in part. That date must be reasonable in consideration of the circumstances associated with the request.
The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. In my view, every law must be implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement of legislative intent, §84 of FOIL states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.” As the Court of Appeals has asserted:
"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].
In a judicial decision concerning the reasonableness of a delay in disclosure that preceded the enactment of the 2005 amendments that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:
"The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL"(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).
If neither a response to a request nor an acknowledgment of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of twenty or fewer business days given in its acknowledgment, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:
"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
Based on the direction given in the provision quoted above, if an appeal is denied in whole or in part, an agency cannot merely reiterate the grounds for denial expressed in its initial response to a request. On the contrary, it must “fully explain in writing the reasons for further denial. A cursory or perfunctory response would be inconsistent with that requirement.
In an effort to resolve the matter, a copy of this opinion will be forwarded to officials in the Executive Chamber.
I hope that I have been of assistance.
Robert J. Freeman