July 31, 2008

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 District Attorney Soares:

            As you are aware, I have received your correspondence in which you sought an advisory opinion concerning the Freedom of Information Law.

            You wrote that you have received requests pursuant to that statute relating to your “Investigation D”, and your “Inquiry into the Alleged Misuse of New York State Resources by the Office of Governor Eliot Spitzer and the Division of State Police.”  As part of Investigation D, the Commission on Public Integrity (“the Commission”)  made available to you a copy of Darren Dopp’s testimony before the Commission.  Although the records of testimony in the possession of the Commission are excluded from the coverage of the Freedom of Information Law pursuant to §94(17) of the Executive Law, it is your view that duplicates of those records in the possession of your office fall within the scope of the Freedom of Information Law.  You have asked “whether the Executive Law exclusion applies in this situation.”

            Reference was also made to a report prepared by your office “based on testimony and evidence gathered pursuant to limited waiver agreements.”  You indicated that requests have been made pursuant to the Freedom of Information Law for “the unredacted version of this report”, but that “[v]arious attorneys have raised concerns about [y]our authority to release a report of this type, citing among other things, CPL 190.85.”  You pointed out, however, that “the original report was not created using any information garnered through a grand jury subpoena”, and asked whether “there is an exemption under the Freedom of Information Law that pertains to this type of report.”

            From my perspective, your conclusion concerning the authority to disclose records obtained from the Commission is accurate.  In this regard, I offer the following comments.

            First, the Freedom of Information Law is applicable to all agency records, and §86(4) defines
the term “record” expansively to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

            Based on the definition, when documentary materials, regardless of their physical form (i.e., paper or electronic storage media), come into the possession of an agency, they constitute agency “records” that fall within the requirements of the Freedom of Information Law.

When an agency prepares a record and copies are transmitted or acquired to one or more other agencies, any of those agencies in receipt of a FOIL request would be obliged to respond [see e.g., Muniz v. Roth, 620 NYS 700 (1994)].  Perhaps most significant for purposes of illustration is a decision rendered by the Court of Appeals involving a request made to a state agency for copies of subpoenas issued by a court for that agency’s records.  To put the matter in perspective, while the Freedom of Information Law includes all state and municipal agencies within its scope, the courts are excluded from the coverage of that law.  That being so, the agency denied access, contending that court records in its possession were not covered by the Freedom of Information Law.  In Newsday v. Empire State Development Corporation [98 NY2d 359 (2002)], the Court of Appeals unanimously disagreed, stating that the records were subject to the Freedom of Information Law, “irrespective of whether they are deemed to have been a mandate of a court and issued for a court.”  The Court found further that “ESDC, a state public corporation, is undeniably an agency under FOIL.  It presently has physical possession of the subpoenas.  Thus, in the hands of ESDC, the subpoenas constitute agency records: ‘information kept [or] held * * * by * * * agency [i.e., ESDC] * * * in any physical form whatsoever.”

            In like manner, I believe that copies of the records made available by the Commission in your possession are records of the Office of the Albany County District Attorney for the purpose of consideration of a request made under the Freedom of Information Law.

            Second, records in possession of the Commission fall outside the requirements of the Freedom of Information Law.  Section 94(17)(a) of the Executive Law states that:

“Notwithstanding the provisions of article six of the public officers law, the only records of the commission which shall be available for public inspection and copying are:

  (1) the information set forth in an annual statement of financial disclosure filed pursuant to section seventy-three-a of the public officers law except the categories of value or amount, which shall    remain confidential, and any other item of information deleted pursuant to paragraph (h) of subdivision nine of this section;

  (2) notices of delinquency sent under subdivision eleven of this section;

 (3) notice of reasonable cause sent under paragraph (b) of subdivision twelve of this section;

  (4) notices of civil assessments imposed under this section which shall include a description of the nature of the alleged wrongdoing, the procedural history of the complaints, the findings and determinations made by the commission, and any sanction imposed;

(5) the terms of any settlement or compromise of a complaint or referral which includes a fine, penalty or other remedy; and

(6) those required to be held or maintained publicly available pursuant to article one-A of the legislative law.”

            Article Six of the Public Officers Law is the Freedom of Information Law, and based on the foregoing, the only records required to be disclosed by the Commission are those identified in subparagraphs (1) through (6) of paragraph (a) of §94(17).  That being so, other records, including the records at issue, in possession of the Commission are beyond the coverage of the Freedom of Information Law.

            Third, that the records are exempt from disclosure to the public when in possession of the Commission does not, in my opinion, render them exempt in like manner when duplicates are in possession of another agency.  There are a variety of instances in which records sought from one agency are exempt from disclosure, but in which the same records in possession of a different agency are accessible.  For instance, in a case involving a request for W-2 forms maintained by a town pertaining to its employees, it was contended that W-2 forms are specifically exempted from disclosure by statute on the basis of 26 USC 6103 (the Internal Revenue Code) and §697(e) of the Tax Law.  In an effort to obtain expert advice on the matter, I contacted the Disclosure Litigation Division of the Office of Chief Counsel at the Internal Revenue Service to discuss the issue and was informed that the statutes requiring confidentiality pertain to records received and maintained by the Internal Revenue Service; those statutes do not pertain to records kept by an individual taxpayer [see e.g., Stokwitz v. Naval Investigation Service, 831 F.2d 893 (1987)], nor are they applicable to records maintained by an employer.  The attorney for the Internal Revenue Service said that the statutes in question require confidentiality only with respect to records that it receives from the taxpayer.  The issue was raised and answered in the same manner by the State Department of Taxation and Finance with respect to its records pertaining to taxpayers.  Based on that information and an opinion prepared by this office, it was held in Day v. Town Board of Town of Milton (Supreme Court, Saratoga County, April 27, 1992) that W-2 forms in possession of a town are subject to rights of access conferred by the Freedom of Information Law.  More recently, in a case involving data maintained by a state agency “derived from tax forms or may be compiled in the same manner as tax forms does not place such data within the protection of the confidentiality provisions of the Tax Law (see Tax Law §202, §697[e]; 26 USC 6103)” (The Herald Company v. New York State Department of Economic Development, Supreme Court, Albany County, February 8, 2007).

            In short, although records may be exempt from disclosure when in possession of an agency that is the subject of a specific statute that confers confidentiality, that restriction does not render duplicate records maintained by other agencies confidential, unless there is statutory direction to do so.  An example of a statute that requires confidentiality on the part of recipients of information, §33.13 of the Mental Hygiene Law, states that clinical records pertaining to patients or clients maintained by a mental health facility are confidential, and subdivision (f) states that information disclosed to third parties “shall be kept confidential by the party receiving such information and the limitations on disclosure in this section shall apply to such party.”  Section 94(17)(a) of the Executive Law contains no such direction.  Therefore, in my opinion, §94(17)(a) is inapplicable to records in your possession, and there is no statutory prohibition regarding disclosure by your office.  Rather, I believe that the records in your possession fall within the coverage of the Freedom of Information Law.

            As a general matter, the Freedom of Information Law is based on a presumption of access.  Stated differently, all agency records are accessible to the public, except those records portions thereof that may be withheld in accordance with exceptions to rights of access appearing in paragraphs (a) through (j) of §87(2).  It is emphasized that the language of §87(2) indicates that an agency “may” withhold records or portions of records in certain circumstances; it does not require that records falling within the exceptions must be withheld.  As stated by the Court of Appeals:

“...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency’s discretion to disclose such records...if it so chooses” Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].

The only instance in which an agency must withhold records would involve a situation in which a statute prohibits disclosure, and I do not believe that any statute serves to do so in the context of your inquiry relating to the records obtained from the Commission.   

            In sum and in response to your question involving materials acquired from the Commission, in my view, §94(17)(a) of the Executive Law does not apply to the records of testimony to which you referred; rather, the governing statute is the Freedom of Information Law, which authorizes you to disclose the entirety of the testimony.

            With respect to your remaining question, the first ground for denial of access in the Freedom of Information Law, §87(2)(a), pertains to records that are “specifically exempted from disclosure by state or federal statute.”  One such statute is §190.85 of the CPL, which when applicable, creates a temporary exemption from disclosure.  However, based on the facts that you provided, I do not believe that it applies in this case or that it serves as a bar to disclosure.
Subdivision (1) of §190.85 states that a grand jury may submit a report to the court by which it was empaneled concerning “misconduct, non-feasance or neglect in public office by a public servant as the basis for a recommendation of removal or disciplinary action.”  Subdivision (2) requires the court to which the report is submitted to “make an order accepting and filing such report as a public record” if certain conditions are met.  Subdivision (3) states that the “order accepting a report....and the report itself, must be sealed by the court and may not be filed as a public record, or be subject to subpoena or otherwise be made public until at least thirty-one days after a copy of the order and the report are served upon each public servant named therein” or following an appeal if an appeal is taken.  Subdivision (4) states that if a court finds that the filing of a report “may prejudice fair consideration of a pending criminal matter, it must order such report sealed...during the pendency of such criminal matter...”

            It is my understanding that the testimony acquired by your office was not obtained under oath or pursuant to a grand jury subpoena, that the subject of the investigation never was presented before a grand jury, and consequently, that no grand jury submitted a report falling within the coverage of §190.85 to a court.  If that is so, again, in my opinion, §190.85 has no application, and there is no relevance to the provisions in that statute dealing with the sealing of the report at issue.  From my perspective, the report is subject to rights of access conferred by the Freedom of Information Law, and it is reiterated that the Freedom of Information Law is permissive.  Only in situations in which a separate statute forbids disclosure is an agency, such as your office, prohibited from disclosing records in its possession.  In this instance, I know of no statute that would prohibit disclosure.

            I hope that I have been of assistance.  Should any further questions arise, please feel free to contact me.



                                                                                                Robert J. Freeman
                                                                                                Executive Director