May 20, 1997




Mr. Anthony J. Stancato
1640 St. Agnes Avenue
Utica, NY 13501

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.

Dear Mr. Stancato:

I have received your letter of April 26 and the materials
attached to it. You have sought an advisory opinion concerning
requests made under the Freedom of Information Law for records of
the Marcy Correctional Facility. You indicated that several of the
requests had not been answered.

Having reviewed the correspondence, I offer the following

First, it appears that your requests might have been
inappropriately directed. The records sought appear to involve
purchase orders and related records, and an Inspector General's
report, and your requests were made to the facility's inmate
records coordinator. That person would likely have no jurisdiction
or control with respect to the records sought. That being so, it
is suggested that you might resubmit your requests to the
Department's records access officer. According to the Department's
regulations, the records access officer is the Deputy Commissioner
for Administration, whose office is located at Building 2, State
Campus, Albany, NY 12236.

Second, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests and appeals. Specifically, §89(3) of the Freedom of
Information Law 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 when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision 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."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

Third, 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.

In my view, purchase orders and similar records are typically
available, for none of the grounds for denial would be applicable.
In the context of the Department of Correctional Services, however,
due to the nature of its functions, it is possible that some
aspects of those kinds of records could be withheld pursuant to
§87(2)(f). That provision permits an agency to withhold records to
the extent that disclosure "would endanger the life or safety of
any person."

Several grounds for denial may be pertinent with respect to a
report prepared by the Inspector General. Of potential relevance
is §87(2)(b), which permits an agency to withhold records to the
extent that disclosure would constitute "an unwarranted invasion of
personal privacy". In addition, §89(2)(b) provides a series of
examples of unwarranted invasions of personal privacy.

While 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
employees. It is clear that public officers and employees enjoy a
lesser degree of privacy than others, for it has been found in
various contexts that they are required to be more accountable than
others. With regard to records pertaining to public officers and
employees, the courts have found that, in general, records that are
relevant to the performance of a their 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, supra; 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].

Several of the decisions cited above, Farrell, Sinicropi,
Geneva Printing, Scaccia and Powhida, dealt with situations in
which determinations indicating the imposition of some sort of
disciplinary action pertaining to particular public employees were
found to be available. However, when allegations or charges of
misconduct have not yet been determined or did not result in
disciplinary action or a finding of misconduct, the records
relating to such allegations 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 addition, to the extent that
charges are dismissed or allegations are found to be without merit,
I believe that they may be withheld.

In view of the duties of the Inspector General, also
potentially relevant is §87(2)(e), which states in part that an
agency may withhold records that:

"are compiled for law enforcement purposes and
which, if disclosed, would:

i. interfere with law enforcement
investigations or judicial proceedings...

iii. identify a confidential source or
disclose confidential information relating to
a criminal investigation..."

In Hawkins v. Kurlander [98 AD 2d 14 (1938)], the Appellate
Division referred to and "adopted" the view of federal courts under
the federal Freedom of Information Act. The Court cited Pape v.
United States (599 F.2d 1383, 1387), which held that a major
purpose of the "law enforcement" exception "is to encourage private
citizens to furnish controversial information to government
agencies by assuring confidentiality under certain circumstances"
(Hawkins, supra, at 16). Similarly, the Appellate Division in
Gannett v. James cited §87(2)(e)(i) and (iii) in upholding a denial
of complaints made to law enforcement agencies, stating that:

"the confidentiality afforded to those wishing
it in reporting abuses is an important element
in encouraging reports of possible misconduct
which might not otherwise be made. Thus,
these complaints are exempt from disclosure
which might interfere with law enforcement
investigations and identify a confidential
source or disclose confidential information"
[86 AD 2d 744, 745 (1982)].

The remaining ground for denial of apparent relevance would be
§87(2)(g), which permits an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or

ii. instructions to staff that affect the

iii. final agency policy or determinations;

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.

Many of the records prepared in conjunction with an
investigation would constitute inter-agency or intra-agency
materials. Insofar as they consist of opinions, advice,
conjecture, recommendations and the like, I believe that they could
be withheld. For instance, recommendations concerning the course
of an investigation or opinions offered by employees interviewed
would fall within the scope of the exception.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Anthony J. Annucci