May 17, 2005

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.


As you are aware, I have received your correspondence. Please accept my apologies for the delay in response. The issue raised involves the propriety of a denial of access to substantial portions of complaints made to the Department of Agriculture and Markets relating to the Pet Dealer Licensure Law. You indicated that some of the complaints were made by humane organizations, veterinary hospitals and other entities.

In this regard, 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 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." In the context of your inquiry, it has generally 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 view, 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. If the deletion of personally identifying details is insufficient to ensure that the identity of complainant will not become known, other portions of the complaints may, in my view, be withheld.

Since you referred to complaints by organizations, rather than natural persons, it is noted that the provisions dealing with the protection of privacy pertain to records identifiable to natural persons. I do not believe that they would apply to records identifiable to entities, such as humane organizations and other entities. In those instances, the identities of those entities could not, in my opinion, justifiably be deleted.

Next, when a record is available in its entirety under the Freedom of Information Law, any person has the right to inspect the record at no charge. However, there may often be situations in which some aspects of a record, but not the entire record, may properly be withheld in accordance with the ground for denial appearing in §87(2). In that event, I do not believe that an applicant would have the right to inspect the record. In order to obtain the accessible information, upon payment of the established fee, I believe that the agency would be obliged to disclose those portions of the records after having made appropriate deletions from a copy of the record. When accessible and deniable information appear on the same page, preparing a redacted copy and charging the established fee for a copy, in my opinion, is proper (see VanNess v. Center for Animal Care and Control, Supreme Court, New York County, January 28, 1999).

I hope that I have been of assistance.



Robert J. Freeman
Executive Director
cc: Ruth A. Moore
Jessica A. Chittenden