FOIL AO 19550


From: Freeman, Robert J (DOS)

Sent: Tuesday, March 28, 2017 4:28 PM


Subject: DPS "Ruling Clarifying Status of Information Provided Pursuant to Protective Order"``


I have received your request for our views regarding the Department of Public Service (DPS) ruling referenced above.

In brief, DPS contends that the information at issue is confidential based on §87(2)(a) of the Freedom of Information Law (FOIL), which pertains to records that “are specifically exempted from disclosure by state or federal statute.” One such statute, according to the ruling is §74(3)(c) of the Public Officers Law which prohibits officers or employees of a state agency from disclosing “confidential information acquired by him or her in the course of his or her official duties…” The other statute cited is §15 of the Public Service Law, which states in part that “Any agent or employee of the department who divulges any confidential information which may come to his knowledge during the course of any inspection or examination of the property, accounts, records or memoranda of any person, corporation or municipality subject to the jurisdiction of the commission….shall be guilty of a misdemeanor.”

I note that the latter provision cited in the preceding paragraph was initially enacted in 1910. In the same chapter during the same year, §16 of the Public Service Law continues to state that “All proceedings of the commission and all documents and records in its possession shall be public records.” From our perspective, neither §15 conferring confidentiality nor §16 conferring an apparent right of public access can be construed literally. In a decision dealing with a somewhat analogous situation involving a statute also enacted during the first decade of the twentieth century, §51 of the General Municipal Law, the Court of Appeals determined that to give effect to FOIL and §51, “the FOIL exemptions must be read as having been engrafted, as a matter of public policy, certain limitation on the disclosure of otherwise accessible records” [Xerox Corporation v. Town of Webster, 65 NY2d 131, 132 (1985)]. Stated differently, neither a blanket prohibition nor a blanket obligation to disclose would be consistent with public policy or any number of statutes enacted since 1910.

With respect to §74(3)(c) of the Public Officers Law, the issue involves the meaning and scope of the term “confidential.” The ruling by DPS if honored would enable that agency, as well as others, to claim confidentiality without any specific statutory basis for so doing, and a record could be be stamped or marked “confidential” as a means of prohibiting disclosure. Again, §87(2)(a) of FOIL refers to the ability to withhold records that are specifically exempted from disclosure by statute.  Section 74(3)(c) makes no reference to specific records, and the Court of Appeals has asserted that:

“Although we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting disclosure claims as protection” [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].

Also relevant is another decision rendered by the Court of Appeals in which the Court focused on an agency claim that it could “engage in unilateral prescreening of those documents which it deems to be outside the scope of FOIL” and found that such activity “would be inconsistent with the process set forth in the statute” [Capital Newspapers v. Whalen, 69 NY2d 246, 253 (1987)].  The Court determined that:

“…the procedure permitting an unreviewable prescreening of documents – which respondents urge us to engraft on the statute – could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate request. There would be no way to prevent a custodian of records from removing a public record from FOIL’s reach by simply labeling it ‘purely private.’ Such a construction, which would thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected” (id., 254).

Reference in your letter is also made to a DPS regulation concerning confidentiality, 16 NYCRR Subpart 6‐1. In this regard, the Court of Appeals has held that a state agency’s regulation is not a “statute” and that a regulation cannot exempt records from disclosure in a manner inconsistent with FOIL.  A statute, based on judicial interpretations of FOIL, is an act of the State Legislature or Congress [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)], and it has been found that agencies’ regulations are not equivalent to statutes for purposes of §87(2)(a) of FOIL [see Zuckerman v. Board of Parole, 53 AD2d 405 (1976)] and particularly the Court of Appeals in Morris v. Martin, Chairman of State Board of Equalization and Assessment [55 NY2d 1026 (1982)]. Based on those decisions, insofar as a state agency’s regulations render records or portions of records deniable in a manner inconsistent with FOIL or some other statute, those regulations are, in our opinion, invalid.

Lastly, you asked whether the Department of State may agree to abide by the assertions of DPS in relation to the ability to deny access to records in accordance with §§87(2)(d) and 89(5) of FOIL. In my view, so long as such an agreement is made in writing and refers to the specific records at issue, such an agreement would be valid and consistent with law.

The foregoing is not intended to suggest that the records at issue must be disclosed in response to a FOIL request. Rather, insofar as those records may be withheld in accordance with the exceptions to rights of access appearing in §87(2) of FOIL, we believe that DPS has the authority to deny access.

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State One Commerce Plaza 99 Washington Avenue
Albany, NY 12231

(518)474-2518 (p)
(518)474-1927 (f)