June 20, 2014



FROM:    Camille S. Jobin-Davis, Assistant Director
Lucya J. Pak, Legal Intern


The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.


We have received your correspondence pertaining to your appeal of a denial on a FOIL request (#14099) for “all correspondence and communication between the Attorney General’s Charities Bureau and the NYS Supreme Court, the Long Island College Hospital, Continuum Health Partners and SUNY (including SUNY-Downstate Medical Center) relating to the 2006 and 2011 modifications of restrictions on the Othmer Funds and distributions of or borrowing from the Funds.” It is our understanding that your request was initially denied pursuant to the following:

“Public Officer Law §87(2)(a) and Civil Practice Law and Rules §3101(c ), because they constitute attorney work product, and Public Officers Law §87(2)(g), because they constitute inter or intra agency materials, and Public Officers Law §87(2)(e), because they were compiled for law enforcement purposes and would interfere with law enforcement investigations or judicial proceedings if disclosed.”

When the litigation to which the records relate was settled, you resubmitted your request, only to be denied access again, as follows:

“On August 20, 2013, Justice Demarest rescinded her 2011 sale order and subsequent judicial proceeding ensued. The litigation that was pending at the time of your FOIL request #130440 was settled but the assets of LICH, and the Othmer Endowment Funds, are still subject to judicial proceedings. Justice Demarest retains jurisdiction over the 2011 sale and cy pres orders, and she will conduct further proceedings relating to assets still held by LICH, including the Othmer Funds, to pay retained liabilities. Furthermore, a new sale of LICH, currently in the proposal stage, will be the subject of judicial proceedings. The Othmer Endowment Funds are relevant to both of these proceedings, and disclosure of the requested record would interfere with the OAG’s ability to participate in them.”

First, in this regard, §89(4)(a) of FOIL pertains to the right to appeal a denial of access to records and requires that an agency's determination of an appeal must either grant access to the records or "fully explain in writing... the reasons for further denial." In this instance, the determination following the appeal merely repeated the rationale expressed in the initial denial of access and essentially reiterated the statutory language of §87(2)(e). From our perspective, the response to the appeal cannot be characterized as having "fully explained" the reasons for further denial.

Second, the denial of the FOIL request on the ground that the records “were compiled for law enforcement purposes and would, if disclosed, interfere with law enforcement investigations or judicial proceedings” cannot, in our view, be justified solely based on contention that “disclosure of the request would interfere with the OAG’s ability to participate in them.” We note that the New York City Department of Investigation was criticized in Lewis v. Giuliani (Supreme Court, New York County, NYLJ, May 1, 1997) for denying access also based merely on a reiteration of the statutory language of an exception, stating that "DOI may not engage in a mantra-like invocation of the personal privacy exemption in an effort to 'have carte blanche to withhold any information it pleases'". In this instance, the "law enforcement purposes" exception appears to have been used in much the same manner.

Third, the exception upon which the denial is based, §87(2)(e)(i), authorizes an agency to withhold records that “are compiled for law enforcement purposes and which, if disclosed, would...interfere with law enforcement investigations or judicial proceedings...” In an Appellate Division decision that is often cited in the context of records relating to law enforcement, Pittari v. Pirro [258 Ad2d 202 (1999)], it was stated that:

“[t]he question is whether the nature of the records sought and the timing of the FOIL request rendered those records exempt from disclosure under FOIL.  The Court of Appeals, in Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 572, 419 N.Y.S.2d 467, 393 N.E.2d 463 noted:

‘[T]he purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution’” (id., 169).

As we understand the matter, the defendant in Pittari sought records under the Freedom of Information Law prior to discovery, for the court found that “[i]f a criminal proceeding is pending, mandating FOIL disclosure would interfere with the orderly process of disclosure in the criminal proceeding set forth in CPL Article 240" (id., 171). There appears to be no criminal proceeding to which the records at issue relates with respect to your request.

From our perspective, the records requested here do not involve a law enforcement function and, therefore, §87(2)(e) concerning records "compiled for law enforcement purposes" is inapplicable. To contend that records which were generated or gathered for purposes wholly unrelated to any law enforcement investigation may now be withheld due to their use in a judicial proceeding would be unreasonable and tend to subvert the purposes of the Freedom of Information Law. Here, the documents were “compiled by the Office of the Attorney General while fulfilling its statutory role of enforcing the proper administration of property held for charitable purposes and as a statutory party to the 2006 and 2011 petitions.”

The exception upon which the Office of the Attorney Governor relies on pertains to interference with a law enforcement investigation or judicial proceeding. However, not all investigations involve law enforcement; not all judicial proceedings involve law enforcement or criminal matters. The denial appears to have eliminated consideration of the initial clause in §87(2)(e). To assert that provision, the records must have been compiled for law enforcement purposes. That does not appear to have been so. To accept the reasoning offered would lead to a conclusion that the possibility of interference with any litigation or judicial proceeding would justify a denial of access.

We point to the decision rendered by the Court of Appeals in Capital Newspapers v. Burns, [109 AD2d 92, aff'd 67 NY2d 562 (1986)]. In its discussion of the intent of the Freedom of Information Law, the court found that the statute:

"affords all citizens the means to obtain information concerning the day-to-day functioning of the state and local government thus providing the electorate with sufficient information to 'make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence or abuse on the part of government officers" (id. at 566).

The denial appears to be inconsistent with the language and intent of the Freedom of the Freedom of Information Law and its judicial construction. In short, it appears to evince a refusal to follow or recognize the clear direction provided by not only in Lewis, but more importantly by the Court of Appeals in Gould v. New York City Police Department [87 NY2d 267 (1996)].

In Gould, the Court of Appeals stressed that FOIL 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. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In our view, the phrase quoted in the preceding sentence evidences recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, we believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

The court in Gould reiterated its general view of the intent of the Freedom of Information Law, 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 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 agency 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), an exception separate from that cited in response to your request. The Court however 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:

"...to 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 vl. 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.).

In the context of your request, although a blanket denial of access in our view is equally inappropriate we are not suggesting that the records sought be disclosed in full. Rather, as the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" and it is narrowly tailored to provide maximum access. The agency seeking to prevent disclosure carries the burden of proof that the materials fall “squarely within a FOIL exemption articulating a particularized and specific jurisdiction for denying access.” (id., 277; emphasis added).

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