March 30, 2010

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, unless otherwise indicated.


            We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Adirondack Park Agency.  Specifically, you requested all records related to a case in which the Agency determined that you had improperly filled a wetland area.  The agency responded by providing various records and denying access to others based on three exceptions appearing in the Freedom of Information Law.  The Agency’s denial was upheld by the FOIL Appeals Officer, based partially on the three exceptions, and partially on Klein v Lake George Park Commission, 261 AD2d 774, 689 NYS2d 782 (3rd Dept, 1999). 

            In response to our notification that you requested an advisory opinion, Counsel to the Agency further disclosed one additional record with redactions.  In conjunction, Counsel indicated that his review of the record allowed for two interpretations of the record.  In this regard, we offer the following comments.

            First, 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 (k) of the Law.  We 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 first provision on which the Agency relied 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.  We 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 our 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, we believe that identifying details may be deleted.  In our opinion, this exception encompasses all information that would tend to identify the person(s) who made the complaint(s), not merely the name and address.  Similarly, if there is information regarding other persons contained within Agency records that, if disclosed, would cause an unwarranted invasion of personal privacy of those persons, witnesses, for example, the Agency has the authority to deny access.

            In combination with that provision, the Agency relied on §87(2)(e)(iii), which authorizes an agency to withhold records “compiled for law enforcement purposes” to the extent that disclosure would “identify a confidential source or disclose confidential information relating to a criminal investigation.”  In our view, the identity of the complainant may be withheld based on this provision when s/he is a “confidential source.”  Moreover, we know of no statute or case law that limits application of §87(2)(e) to criminal law enforcement investigations or proceedings.   In other words, it is our understanding that when an agency compiles records in conjunction with a law enforcement investigation or proceeding, it may deny access to records or portions thereof that would identify a confidential source. As indicated previously, we believe that a complainant’s identity may, alternatively, be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.

            The third provision of law that the Agency relied on to deny access, although cited as a basis
for denial, due to its structure, often requires substantial disclosure. The cited provision, §87(2)(g), permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

            It is noted that the language quoted above contains what in effect is a double negative. While inter- agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in our view be withheld.

            In this vein, the Court of Appeals reiterated its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [89 NY2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]).  As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

            Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

" invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

If the record sought indeed consists of intra-agency material, that it is preliminary does not remove it from rights of access. One of the contentions offered by the agency in Gould was that certain reports could be withheld because they are not final and because they relate to matters for which no final determination had been made. The Court rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][iii)]. However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." (id., 276).

In short, that a record is in draft or preliminary would not represent an end of an analysis of rights of access or an agency's obligation to review the entirety of its contents. The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i). In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][I]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182)" (id., 276-277).

            In the Agency’s response on January 19, 2010, you were provided with a copy of a November 19, 2009 intra-agency memorandum from Fravor to O’Dell.  This memo, in our opinion, is a clear example of an intra-agency record that contains both “statistical or factual tabulations or data” and “final agency policy or determinations.”  To the extent that the redacted material consists of opinions and/or advice or recommendations, we believe the Agency has the authority to deny access.  We agree with Counsel’s determination to disclose portions of the November 19, 2009 memorandum; however, we would characterize Fravor’s statements as evidence of factual information regarding the area at issue and the Agency’s final determinations.

            We respectfully disagree with the Agency’s reliance on the case Klein v Lake George Park Commission, 261 AD2d 774, 689 NYS2d 782 (3rd Dept, 1999) in support of its denial of access to certain of the requested records.  In Klein, the Department of Environmental Conservation investigated a complaint that raw sewage was being discharged into Lake George. The Department found insufficient evidence of contamination and the matter was dismissed.  Petitioners alleged that Klein, a licensed civil engineer whose professional reputation as a designer and certifier of septic systems in the Lake George area was damaged by false charges, and made an “application for preaction disclosure to determine the source of the allegation that they were discharging raw sewage.” The Appellate Division affirmed the Supreme Court’s denial of the motion, based on an analysis of the “public interest privilege”.

            In our limited experience with discovery proceedings in the course of civil litigation, §3101 of the Civil Practice Law and Rules requires the disclosure of “all matter material and necessary in the prosecution or defense of an action…”, a unique standard, separate from the presumption of access embodied in the Freedom of Information Law.  The Court likely applied the “material and necessary” standard in Klein, supra, because petitioners had not made a request for the records pursuant to the Freedom of Information Law.  It is our opinion that FOIL may, in some instances, require greater disclosure than a demand made pursuant to the CPLR during discovery proceedings. See M. Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY2d 75 (1984); Buono v. Brodsky, Supreme Court, Albany County, December 30, 2004; and Doolan v. BOCES, 48 NY2d 341, 422 NYS2d 927 (1979), in which the Court of Appeals appears to have abolished the “public interest privilege”, stating that Athe public policy concerning governmental disclosure is fixed by the Freedom of Information Law; the common-law interest privilege cannot protect from disclosure materials which that law requires to be disclosed” (id., at 347.

            Accordingly, we do not believe that Klein would constitute controlling case law or that a “public interest privilege” can properly be asserted to deny access to requested pursuant to the Freedom of Information Law. 

            On behalf of the Committee on Open Government, we hope that this is helpful.



                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director


cc: John Banta