December 28, 2004
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.
I have received your letter and the materials attached to it. According to the correspondence, the State Board of Elections received a complaint "alleging that you engaged in certain improper activities" relating to a primary election conducted in 2003. Having requested "copies of said complaint and supporting materials", the Board’s records access officer denied access, stating that:
"Under Section 87(2)(e) of the New York State Freedom of Information Law, records may be denied if disclosure would, ‘interfere with law enforcement investigations or judicial proceedings’ and/or ‘identify a confidential source or disclose confidential information relative to a criminal investigation.’"
You were also informed that you had the right to appeal the denial of access within thirty days. One of the attachments to your letter, a memorandum sent to the Office of the Inspector, apparently on November 16 of this year, states in part that you contacted me and that I advised that the Board "must provide [you] with a copy of the complaint and all ‘supporting materials’...including the name of the complainant(s)."
While I recall speaking with you, I do not believe that I would have advised that the name of a complainant should be disclosed. In this regard, I offer the following comments.
By way of background, 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. I note that the introductory language of §87(2) refers to the ability to withhold "records or portions thereof" that fall within the grounds for denial that follow. The phrase quoted in the preceding sentence indicates that there may be instances in which a single record includes both accessible and deniable information, and that an agency is required to review a record that has been requested to determine which portions, if any, may properly be withheld.
The exception to rights of access of primary significance, in my view, pertains to the protection of privacy, and §87(2)(b) permits an agency to deny access to records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." It has consistently been advised that those portions of a complaint or other record which identify complainants may be deleted on the ground that disclosure would result in an unwarranted invasion of personal privacy. I point out that §89(2)(b) states that an "agency may delete identifying details when it makes records available." Further, the same provision contains five examples of unwarranted invasions of personal privacy, the last two of which include:
"iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or
v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."
In my opinion, what is relevant to the work of the agency is the substance of the complaint, i.e., whether or not the complaint has merit. The identity of a member of the person who made the complaint is often irrelevant to the work of the agency, and in most circumstances, I believe that identifying details may be deleted.
The provisions cited by the Board involve subparagraphs (i) and (iii) of §87(2)(e) of the Freedom of Information Law, both which pertain to records "compiled for law enforcement purposes." The former states that those records may be withheld when disclosure would interfere with law enforcement investigations or judicial proceedings. If my understanding of the facts is accurate, any investigation has been completed, and there will be no judicial proceeding. If that is so, §87(2)(e)(i) would not serve as a basis for a denial of access. The latter states that records compiled for law enforcement purposes may be withheld to the extent that disclosure would "identify a confidential source or disclose confidential information relating to a criminal investigation." In my view, the identity of the complainant may be deleted based on this provision when he or she is a "confidential source." As indicated previously, I believe that a complainant’s identity may alternatively be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.
In sum, it is clear in my opinion that those portions of the records sought may be withheld to the extent that disclosure would identify the person who made the complaint. It appears, however, that other portions of the records should be disclosed.
I hope that I have been of assistance.
Robert J. Freeman
cc: Lee Daghlian
William J. McCann, Jr.