November 20, 2014
FROM: Robert J. Freeman, Executive Director
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.
As you know, I have received your letter in which you sought an advisory opinion concerning a denial of access to records by the New York City Department of Homeless Services. The records sought involve allegations of abuse or maltreatment at Samaritan Village, and you indicated that you specified in your request that “all personal identifying items including names and ID #s be excluded from the requested documents.”
The Department denied access on several grounds, including paragraphs (g), (b), (f) and (a) of §87(2) of the Freedom of Information Law (FOIL). You contend that Samaritan Village is not a governmental entity and that communications between Samaritan and the Department are neither inter-agency nor intra-agency materials falling within the scope of §87(2)(g) and, therefore, that the records at issue must be disclosed. In this regard, I offer the following comments.
First, insofar as the records sought involve communications between Samaritan and the Department, I would agree that would not constitute inter-agency or intra-agency materials. In short, §86(3) defines the term “agency” to mean an entity of state or local government in New York. If Samaritan is not a government agency, the exception involving those materials would not apply.
Second, when FOIL is the governing statute, §87(2) requires that all agency records be disclosed, except those records “or portions thereof” that fall within the grounds for denial of access that follow. Based on the quoted phrase and direction from the courts, agencies are required to review the entirety of the content of records to determine which portions, if any, may justifiably be withheld. In my view, it is clear that those portions of the records sought that could, if disclosed, identify recipients of public assistance or persons who are the subjects of unsubstantiated or unproven allegations of abuse or maltreatment may be withheld. Those aspects of the records would fall within §87(2)(b) and/or (f), which authorize agencies to withhold records on the grounds, respectively, that disclosure would constitute “an unwarranted invasion of personal privacy” or “could endanger the life or safety of any person.” It appears that you recognize that to be so by means of your indication that identifying items “be excluded.”
Third, the remaining exception cited by the Department is most significant, and its application is, in my opinion, determinative of rights of access. Section 87(2)(a) of FOIL pertains to records that “are specifically exempted from disclosure by state or federal statute.” One such statute is §136 of the Social Services Law, entitled “Protection of public welfare records.” In other contexts, based on the specific language of a statute, it has been held that certain records must remain confidential in their entirety, and that they should not be subject to redaction or deletion [Short v. Board of Managers of Nassau County Medical Center, 57 NY2d 399 (1982)]. The question, therefore, is whether the language of §136 should be construed to permit the Department to withhold the requested records in toto or whether it should delete or redact identifying details prior to disclosure of other portions of the records.
Subdivision (1) of §136 focuses on “names or addresses of persons applying for or receiving public assistance” and requires that those identifying details are confidential, except in specified circumstances. Subdivision (2), however, states that “All communications relating to a person receiving public assistance or care obtained by any social services official, service officer, or employee in the course of his or her work shall be considered confidential…”
Several judicial decisions indicate that identifying details, such as names and addresses must be withheld. For example, in Doe v. Greco, a town board was prohibited from disclosing the names, addresses and amounts of public assistance received by town residents [62 AD2d 498(1976)]. Perhaps most significantly, in the only decision of which I am aware, Paine v. Chick [50 AD2d 686 ( 1975)], that dealt with the competing contentions that records concerning applicants for recipients of public assistance must be withheld in their entirety, as opposed to disclosure of portions of records following the deletion of identifying details, the Appellate Division agreed with the latter. The Court referred to the government agency’s view that “the social services records are completely confidential and disclosure is entirely prohibited” (id.). However, in discussing the issue, it was determined that:
“Disclosure of welfare records is restricted but not completely prohibited under pertinent Federal and State statutes (Addie W. Charles U., 44 AD2d 727). These statutory restrictions are necessary to preserve the dignity and self-respect of a recipient of welfare and to assure the integrity and efficiency of the administration of the program. Suppression, however, should not exceed the purpose of the statute” (id., 687).
Based on the foregoing, I believe that applicable provisions of the Social Services Law are intended to protect the privacy of individuals, but concurrently, to offer the public accountability and a means of monitoring the operation of government agencies.
In sum, as I understand the content of the records at issue, to comply with law, the Department must, in my view, disclose them, except to the extent that disclosure would constitute an unwarranted invasion of personal privacy, could endanger life or safety, or permit the identification of an applicant for or recipient of public assistance.
I hope that I have been of assistance.