July 26, 2007

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.


We have received your letter and apologize for the delay in response. You have sought an opinion concerning “the availability for public inspection of appellate decisions regarding the Unemployment Insurance Appeals Board and the DMV appeals board for chemical test refusal hearings.”

In this regard, I offer the following comments.

First, 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 (j) of the Law.

Pertinent is §89(6), which provides that nothing in the Freedom of Information Law “shall be construed to limit or abridge any otherwise available right of access at law or in equity of any party to records.” Therefore, if records are accessible under a different provision of law or by means of judicial precedent, an exception to rights of access appearing in the Freedom of Information Law could not be asserted to deny access.

With respect to the determinations rendered by the Department of Motor Vehicles, it appears that §307(3)(a) of the State Administrative Procedure Act requires disclosure, for it provides that:

“Each agency shall maintain an index by name and subject of all written final decisions, determinations and orders rendered by the agency in adjudicatory proceedings. For purposes of this subdivision, such index shall also include by name and subject all written final decisions, determinations and orders rendered by the agency pursuant to a statute providing any party an opportunity to be heard, other than a rule making. Such index and the text of any such written final decision, determination or order shall be available for public inspection and copying. Each decision, determination and order shall be indexed within sixty days after having been rendered.

Second, §102(1) of the State Administrative Procedure Act specifies that the Unemployment Insurance Appeals Board is not an “agency” for the purpose of the Act. Nevertheless, I believe that its determinations must be made available in whole or in part in most instances.

In a decision rendered by the Court of Appeals dealing specifically with the Unemployment Insurance Appeals Board, the Court considered the issue of "whether there is any basis for setting aside the strong public policy in this State of public access to judicial and administrative proceedings" [Herald Co. v. Weisenberg, 59 NY2d 378, 381 (1983)] and held that "[a]n unemployment insurance hearing is presumed to be open, and may not be closed to the public unless there is demonstrated a compelling reason for closure and only after the affected members of the news media are given an opportunity to be heard" (id., 380). One of the questions before the Court involved the impact of §537 of the Labor Law, which requires that certain records be kept confidential and states in relevant part that:

"[i]nformation acquired from employers and employees pursuant to this article shall be for the exclusive use and information of the commissioner in the discharge of his duties hereunder and shall not be open to the public nor be used in any court, in any action or proceeding pending therein unless the commissioner is a party to such action or proceeding, notwithstanding any other provisions of law."

The court found that "[s]ection 537 does not require closure of hearings at which claimants present their cases for unemployment benefits", and that "section 537 concerns only disclosure of information acquired through the reporting requirements of article 18, and not closure of hearings..." (id., 382). Since the hearing was erroneously closed, the court found that the petitioner "is entitled to a transcript of the hearing", specifying that "[i]nasmuch as no examination was conducted at the time into the reasons for barring public to specific portions of the testimony, however, the affected parties should be given an opportunity to make such a showing, if they so desire" (id., 384). In conjunction with the foregoing, the Court found that portions of a hearing may be closed when there are "compelling reasons" to do so, as in cases of revelation of alcoholism or mental illness, and held that:

"To the extent that such compelling reasons may exist for making certain information confidential, however, less drastic remedies than closing a hearing in its entirety exist. Although an unemployment compensation hearing is not a criminal judicial proceeding, the procedures outlined with respect to such proceedings are apt (see Matter of Westchester Rockland Newspapers v. Leggett, 48 NY2d 430, 442, supra). When a claimant or employer requests closure of an unemployment compensation hearing during the presentation of certain evidence, he or she must demonstrate that a compelling reason exists for such closure. The court does not have occasion here to catalogue the possible reasons justifying closure, other than to note that a presumption of open hearings does not provide a license to publicize the intimate details of claimants' private lives. If the administrative law judge does find a compelling reason for closure, such reason shall be stated on the public record in as much detail as would be consistent with the reason for closure. And, equally important, no hearing should be closed before affected members of the news media are given an opportunity to be heard 'in a preliminary proceeding adequate to determine the magnitude of any genuine public interest' in the matter" (id., 383).

Unless an unemployment insurance appellate hearing is closed due to “compelling reasons”, I believe that a record of the hearing would be accessible to the public. In other contexts, it has been held that records ordinarily deniable under the Freedom of Information Law when they are submitted into evidence or otherwise made part of a court record prepared in relation to a public judicial proceeding [see e.g., Moore v. Santucci, 151 AD2d 151 (1989)]. If the record of the hearing is accessible, I believe that a determination would be equally available, again, unless there were compelling reasons for closure and, therefore, for withholding a determination in whole or in part.

Lastly, you referred to binders maintained by the Unemployment Insurance Appeals Board that include three hundred cases which are apparently filed chronologically, and that you reviewed those cases to determine whether which among them involved a matter of interest. Following that case by case review, you suggested that “there has to be a way to search each case for a certain keyword” and that the public should have the ability to locate determinations in that manner.

In my opinion, if indeed the Board has the ability through the use of its computers to locate or identify determinations involving a particular issue or subject, the public should be able to request and obtain those records using the same search or retrieval mechanism.

By way of historical background, when the Freedom of Information Law was initially enacted in 1974, it required that an applicant request "identifiable" records. Therefore, if an applicant could not name the record sought or "identify" it with particularity, that person could not meet the standard of requesting identifiable records. In an effort to enhance its purposes, when the Freedom of Information Law was revised, the standard for requesting records was altered. Since 1978, §89(3) has stated that an applicant must merely "reasonably describe" the records sought. I point out that it has been held by the Court of Appeals that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

In my view, whether a request reasonably describes the records sought, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. When an agency can locate records with reasonable effort, I believe that a request meets the requirement of reasonably describing the records.

Further, the regulations promulgated by the Committee on Open Government, which have the force and effect of law, require that agency staff provide the public with guidance that will enable those seeking records to submit a proper request. The regulations in 21 NYCRR §1401.2(a) require that an agency’s records access officer has “the duty of coordinating agency response to public requests for access to records,” and §1401.2(b)(2) states that the records access officer is responsible for assuring that agency personnel:

“Assist persons seeking records to identify the records sought, if necessary, and when appropriate, indicate the manner in which records are filed, retrieved or generated to assist persons in reasonably describing records.”

Based on the foregoing, if your assumption that Board staff has the ability to locate cases based on use of a key word or similar mechanism, I believe that it must inform you of its manner in which cases can be located in order to enable you do so.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Unemployment Insurance Appeals Board