April 14, 2010



FROM:            Robert J. Freeman, Executive Director

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 :

            I have received your correspondence relating to your request for a notice of a building code violation and records relating to it.  In response, as I understand your remarks, you were informed that the records were sealed, and you indicated that the “objective of this sealing process is mark the code enforcement file confidential without access granted on request to the tenant and complainant.”

            In this regard, I offer the following comments.

            First, the Freedom of Information Law pertains to all government agency records and is based on 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.

            Second, it has been held that a promise or assertion of confidentiality cannot be upheld, unless a statute specifically confers confidentiality.  In Gannett News Service v.  Office of Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency guaranteed confidentiality to school districts participating in a statistical survey concerning drug abuse.  The court determined that the promise of confidentiality could not be sustained, and that the records were available, for none of the grounds for denial appearing in the Freedom of Information Law could justifiably be asserted.  In a decision rendered by the Court of Appeals, the state’s highest court, it was held that a state agency's:

"long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature's definition of 'record' under FOIL.  The definition does not exclude or make any reference to information labeled as 'confidential' by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt..." [Washington Post v. Insurance Department, 61 NY 2d 557, 565 (1984)].

            In short, I do not believe that an assertion of confidentiality or marking records confidential would serve to remove from public rights of access records that would otherwise be available.

            Third, although records prepared by municipal employees would fall within one of the grounds for denial, that provision, due to its structure, often requires disclosure.  Specifically, §87(2)(g) of the Freedom of Information Law authorizes 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 my view be withheld.

            In the context of the facts as I understand them, and in conjunction with the foregoing, insofar as a records consist of expressions of opinion or recommendation, I believe that those portions may be withheld.  However, those portions consisting of statistical or factual information must in my view be disclosed under §87(2)(g)(i).  Further, insofar as such records indicate violations of building or fire codes, for example, those portions would be reflective of final agency determinations available under §87(2)(g)(iii).

            I point out, too, that it had been claimed in the past that building code inspection records could be withheld on the ground that they involved investigatory files compiled for law enforcement purposes.  Nevertheless, in one of the first decisions rendered under the Freedom of Information Law, which at the time was not as expansive in terms of rights of access as the current law, the files of a building code enforcement agency, including records indicating code violations, were found to be accessible [see Young v. Town of Huntington, 388 NYS 2d 978 (1976)].

            Lastly, although the records in question might relate to or be used in litigation or enforcement proceedings, that would not remove them from public rights of access.  The initial ground for denial 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 §3101(d) of the Civil Practice Law and Rules, which exempts material prepared for litigation from disclosure.  Nevertheless, the records sought would apparently have been prepared or acquired in the ordinary course of business, rather than for any purpose relating to litigation.  Further, it has been determined judicially that if records are prepared for multiple purposes, one of which includes eventual use in litigation, §3101(d) does not serve as a basis for withholding records; only when records are prepared solely for litigation can §3101(d) be properly asserted to deny access to records [see e.g., Westchester-Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)]. 

            I hope that I have been of assistance.