FOIL AO 19648

From:                      Robert J. Freeman, Executive Director
Sent:                       February 21, 2018
Cc:                           Thomas Merrill



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, except as otherwise indicated.

I have received your letter and apologize for the delay in response.  You have requested an advisory opinion concerning a response to a request for certain data maintained by the New York City Department of Health and Mental Hygiene.

In December of last year, you requested “blood test results for children in public housing” and received a partial denial of access indicating that “There is no way to provide ‘anonymized’ documentation about the blood lead levels of children residing in NYCHA buildings with the data points you request..without an unwarranted invasion of the personal privacy of the children and their families.  You revised the request and appealed to Thomas Merrill, the Department’s Appeals and General Counsel, and sought the “blood lead test results of NYCHA children only including age, date of test and blood level result from January 1, 2013 to present.” Following the revision of the request, in phone conversations with Mr. Merrill, you “conceded to removing the date of the test.” Based on that agreement, the request was limited to records of a child’s age and blood test result over a four- year period.

Notwithstanding the narrowing of your request, the request was granted and denied in part, for the response indicated that the Department would provide information referenced earlier “only when the number of children in a particular year is five or greater.”  Mr. Merrill wrote that disclosing blood lead levels for which there are fewer than five children “is not sufficiently large to protect the confidentiality of the child or children with that lead level” and that “the Department has concerns about releasing data that, while anonymized, could lead to the re-identification of the children whose blood levels are being disclosed.”

Due to that outcome, you wrote that you “are finding it difficult to see how one could use age – not specified within a three-year period – to re-identify any specific child within the more than 150,000 children living in NYCHA building throughout the five boroughs” and, therefore, “the privacy concerns seem unwarranted.”

I agree with your contention, and in this regard, I offer the following comments.

First, as you are likely aware, the Freedom of Information Law (FOIL) is based on a presumption of access.  Stated differently, all agency records are available, except those records or portions of records that fall within one or more of the exceptions to rights of access appearing in §87(2) of FOIL.

In some instances, redaction of a name or other details may be insufficient to ensure that a person’s identity might not become known.  In a school setting, for example, parents and students are often known to each other, and the disclosure of certain characteristics, even after redaction of a name, age or address, could enable some within a school community to identify a particular student.  In this instance, however, the identities of those residing in public housing are confidential.  The first exception in FOIL, §87(2)(a), pertains to records that “are specifically exempted from disclosure by state or federal statute.”  One such statute, §159 of the Public Housing Law, prohibits disclosure of records identifiable to tenants in public housing.  The names of those persons and their children are never made known to the public.  That being so, there is no initial capacity to gain knowledge or information concerning those persons.  Absent the ability to connect personal details that may be known or ascertained, there would appear to be no means of deducing one’s identity.

Second, when an agency denies access to records, and the denial is challenged via the initiation of an Article 78 proceeding, unlike other such proceedings in which the petitioner has the burden of proving that the agency acted unreasonably or failed to carry out a legal duty, the agency has the burden of proof when the proceeding involves a denial of access under FOIL.    The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, 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)” [89 NY2d 267, 275(1996)].

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, a83, 476 N.Y.S.2d 69, 464 N.E.2d 437)” (id.).

The issue, in my view, is whether the Department can demonstrate that disclosure of the items at issue would constitute an unwarranted invasion of personal privacy, Daily News v. City of New York Office of Payroll Administration [9 AD 3d 308 (2004)], one of the issues involved portions of records that included the ages of public employees.  In short, both the Supreme Court and the Appellate Division determined that the agency did not meet the burden of proof and could not demonstrate to the courts’ satisfaction how and why disclosure would result in an unwarranted invasion of personal privacy.  In contrast is the decision rendered in Hearst Corporation v. Office of the State Comptroller [882 NYS2d 862 (2009)], which dealt in part with the disclosure of public employees’ dates of birth.  The court found that disclosure that item, unlike disclosure of their ages, would constitute an unwarranted invasion of privacy.  A name coupled with a date of birth, which is akin to a unique identifier, i.e., a social security number, might be used as a link to obtain a variety of other items pertaining to an individual, some of which may be intimate or private. 

I note that the courts have found that “speculation” concerning the potentially harmful effect of disclosure sought to be avoided via the assertion of an exception to rights of access is insufficient to justify a denial of access.  In Markowitz v. Serio [11 NY3d 43 (2008)], the Court of Appeals determined that the possibility of harm that is “theoretical” is inadequate, and that an agency “cannot merely rest upon a speculative conclusion that disclosure might potentially cause harm” (id., 50).  A similar conclusion was reached in a decision in which the issue involved whether disclosure of physicians’ names could be used in combination with other items that are accessible as a means of identifying patients within a certain county.  Specifically, a database maintained by the State Department of Health is disclosed following the redaction of personally identifying details concerning patients.  Among the items disclosed about patients are the month and year of the patient’s birth, the patient’s zip code and county of residence.   The Department contended that “providing the identity of the patient’s physician is the one additional factor that ‘could readily permit a third party to deduce logically the identity of a given patient, resulting in a breach of medical confidentiality.’”  The court found, however, that “such speculation falls far short of ‘articulating a particularized and specific justification for denying access’” [New York Times Co. v. New York State Department of Health, 243 AD2d 158, 160 (1998)].

Here, the possibility of identifying a child or other family members is, in my opinion, more remote than in the case of disclosure of medical information that might conceivably enable an industrious person to identify a patient and his or her medical problem or condition.  If the burden of defending secrecy in that case could not be met, it is difficult to envision how that burden could be met in this instance, particularly in consideration of the factors discussed in the preceding paragraphs.

In sum and considering the large number of children residing in public housing, your estimate of 150,000, I believe that it would be exceeding difficult, if not effectively impossible, to prove to a court that disclosure of a child’s age and blood test results over a four-year period, without any additional details, could enable a member of the public to identify a particular child or children.

In an effort to resolve the matter and to avoid the necessity of litigation, a copy of this opinion will be sent to Mr. Merrill.

I hope that I have been of assistance.