July 10, 1998
Mr. Chris Osborn
          C & C Tobacco Outlet of Ithaca
          109 North Meadow Street
          Ithaca, NY 14850
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. Osborn:
I have received your undated letter, as well as the materials attached to it.
 It is my understanding that you are a tobacconist and that the Tompkins Cortland
          Cayuga Tobacco Control Coalition engaged in a "sting operation" that resulted in a finding
          of a violation occurring at your place of business. You have sought the identities of those who
          appeared at your store, for it is your view that you should be able to "face [your| accuser." 
          The Tompkins County Attorney has denied your request on the grounds that "the records
          were compiled for law enforcement purposes and if disclosed would interfere with law
          enforcement investigations" and that disclosure would result in "an unwarranted invasion of
          privacy."
 From my perspective, it is unlikely that you have the right under the Freedom of
          Information Law to obtain the information sought. In this regard, I offer the following
          comments.
 First, as I interpret the situation, the Tompkins Cortland Cayuga Tobacco Coalition
          is a citizens group that is not part of the government but is participating with the County in
          efforts to enforce provisions of the Public Health Law. If that is so, I do not believe that the
          County would be obliged to disclose records in the circumstance described that identify the
          members of the Coalition. Further, the Coalition would not be subject to the Freedom of
          Information Law, for it is not an "agency" [see Freedom of Information Law, §86(3)].
 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.
 One of the exceptions referenced by the County Attorney, §87(2)(b), authorizes an
          agency to withhold records insofar as disclosure would constitute "an unwarranted invasion
          of personal privacy." In my opinion, the identities of those involved in the sting operation are
          largely irrelevant to the enforcement of the law by the County; what is relevant is whether a
          violation of law occurred. The violation is not being prosecuted by the Coalition, but rather
          by the County as a governmental entity. In short, I believe that the names of those who
          appeared in your store are incidental to the matter, and that, consequently, the names could
          be withheld based upon considerations of privacy.
 The other provision referenced by the County Attorney, §87(2)(e), permits 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." 
Although I believe that §87(2)(b) pertaining to the protection of privacy would serve as a
          valid basis for denying your request, based upon the language of §87(2)(e), it is unlikely in
          my opinion that that provision would serve as a justifiable basis for withholding.
 Lastly, the Public Health Law, §1399-ee, refers to hearings regarding violations. If
          records identifying the members of the Coalition in whom you are interested are introduced
          as evidence at such a hearing, I believe that those records would become part of the record
          and would be available to you.
I hope that I have been of some assistance.
Sincerely,
 Robert J. Freeman
  Executive Director
RJF:jm
cc: Henry W. Theisen, County Attorney
 State of New York
State of New York