FOIL AO 19769

March 4, 2020

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 am writing in response to your request for an advisory opinion regarding the manner in which the New York State Office of Temporary and Disability Assistance (OTDA) responded to a Personal Privacy Protection Law (PPPL) request you submitted on behalf of a client. 

On behalf of your client, and accompanied by your client’s written consent, you requested under the PPPL a complete copy of your client’s Fair Hearing Information System (FHIS) record, copies of all written communications between or among OTDA staff and between OTDA and the New York City Human Resources Administration (HRA) concerning your client, and copies of telephone logs or notes relating to communications between or among OTDA staff and between OTDA and HRA concerning your client.  The agency responded by (1) providing a copy of the FHIS record with redactions and (2) denying your request for records of written and oral communications concerning your client between and among agency staff in its entirety.  You question whether these responses are consistent with the requirements of the PPPL. 

First, you question whether the exemptions in the Freedom of Information Law (FOIL) apply to a request pursuant to the PPPL for disclosure of records (as defined by PPPL) or personal information concerning a data subject. 

As a threshold matter, it is important to note that FOIL governs access to all New York State government agency records and the term “agency” is defined as “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.”  (§86(3) of FOIL)  The definition of agency in the PPPL is more limited and applies only to “any state board, bureau, committee, commission, council, department, public authority, public benefit corporation, division, office or any other governmental entity performing a governmental or proprietary function for the state of New York, except the judiciary or the state legislature or any unit of local government and shall not include offices of district attorneys.”  In short, while FOIL applies to all levels of government (state agencies, counties, cities, towns, villages, school districts, etc.), the PPPL only applies to state agencies.  OTDA is one such state agency. 

Another threshold matter is the fact that the PPPL expressly provides that an agency may not disclose a PPPL record or personal information unless the record is subject to disclosure by FOIL.  See PPPL § 96(1)(c).  If a record containing personal information is requested pursuant to FOIL, that Law permits, but does not require, an agency to withhold those records or portions thereof if disclosure would constitute an unwarranted invasion of personal privacy as defined by § 89(2)(a) of FOIL.  However, disclosure of that same record, or portions thereof, in response to a FOIL request, is prohibited pursuant to § 96(1)(c) of the PPPL.

In response to your request for a complete copy of your client’s FHIS record, OTDA asserted that portions of the record were exempt from disclosure pursuant to § 87(2)(g) of FOIL and on that basis redacted those portions of the FHIS record.  This section of the public officers law permits an agency, in response to a FOIL or PPPL request, to withhold records, or portions thereof, 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.

Previously, staff of the Committee on Open Government has offered the opinion that the PPPL does not contain an exception to rights of access comparable or analogous to § 87(2)(g) of FOIL.  However, over the course of the past 30 years, the courts have consistently upheld agency determinations to deny access to non-final, deliberative material pertaining to a data subject. 

In 1994, the Appellate Division, Second Department held:

Unlike FOIL, which has as its purpose the facilitation of public access to government records, the PPPL is primarily designed to restrict access to personal information maintained by the government and is chiefly aimed at information stored in computerized databanks and information systems (see, Matter of Spargo v New York State Commn. on Govt. Integrity, 140 A.D.2d 26; L 1980, ch 677; Governor’s Mem. approving L 1983, ch 652, 1983 NY Legis Ann, at 285). The PPPL does permit the subject of data to request access to the data (see, Public Officers Law § 95 [1] [a]), essentially for the purpose of correcting or amending factual information contained therein (see, Public Officers Law § 95 [2]; Governor’s Mem approving L 1983, ch 652, 1983 NY Legis Ann, at 285).  [O'Shaughnessy v. New York State Div. of State Police, 202 A.D.2d 508, 510, 609 N.Y.S.2d 18 (1994)]

Further, the court in O’Shaughnessy held that when records “consist of opinions, advice, evaluations, deliberations, conclusions or recommendations,” those records “are not the type of material intended to be governed by the PPPL.” O'Shaughnessy, at 202 A.D.2d at 510.

In Gorski v. Mullins, an unpublished Albany County Supreme Court Decision and Order dated July 1, 2003, the court held that the “PPPL does not open a loophole for the subjects of ‘intra and inter-agency materials’ to obtain access to those documents” and:

Given the PPPL's purpose for granting limited access, it is important to recognize that petitioners' proposed inclusion of anything and everything ‘pertaining’ to data subjects within the statutory definition of ‘record’ (POL § 92[9]) has much more serious consequences than merely opening a loophole for data subjects to look at ‘intra and inter­agency materials’ after-the-fact. Petitioners’ broadly defined ‘record’ would allow those with a personal interest to not only monitor each step of the pre-decisional process as it occurs, but would also allow them to misuse the PPPL's information correction mechanism to interfere in and forestall ongoing agency decision making. If successful in this case, petitioners could also file series of challenges to every ‘opinion, idea, or piece of advice exchanged as part of the consultative or deliberative process of government decision making’ which they arguably ‘belie[ve] is not accurate, relevant, timely or complete’ (Public Officers Law § 95[2]). Nothing in the PPPL reflects a legislative intention to permit such interference.

More recently, in another unpublished Supreme Court decision, Wright v. OTDA, Supreme Court, Albany County (2017), the Court affirmed its position in Gorski and agreed with “Respondents’ [OTDA’s] denial of Petitioner’s PPL (sic) request on the basis that all nine emails are not subject to disclosure under the PPPL because they are inter-agency/intra-agency material pursuant to Public Officer Law § 87(2)(g).” 
In sum, therefore, an agency may in response to a request under the PPPL withhold materials that are exempt pursuant to the provisions of the FOIL.

Second, you sought an opinion whether an agency may deny access, in response to a request pursuant to the PPPL, to written communications and logs or notes relating to oral communications concerning your client if the records are “related to a determination about the data subject.”  The short answer is yes, if the material is a record as defined by PPPL and the record is related to a determination about the data subject, then the agency should provide it in response to a request for such record under the PPPL.

Pursuant to §95 of the PPPL, a data subject has the right to obtain from a state agency records pertaining to him- or herself, unless the records sought fall within the scope of exceptions appearing in subdivisions (5), (6) or (7) of that section (none of which are applicable here) or § 96, which concerns with the privacy of others.  The term “record,” which is defined quite broadly in the FOIL statute, has a significantly narrower meaning in the context of the PPPL.

The term ‘record’ means any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject irrespective of the physical form or technology used to maintain such personal information. The term ‘record’ shall not include personal information which is not used to make any determination about the data subject if it is: . . . (f) correspondence files.” [§ 92(9)] (emphasis is mine)

In our view, this means that if a record is used to make any determination about the data subject and otherwise meets the PPPL statutory definition of record, it would be subject to rights of access conferred by the PPPL.  Here, it appears that OTDA has asserted that that the written communications and logs or notes relating to oral communications which you requested “are correspondence files that do not use [your client’s] personal information to make any determination abut [your client] as the data subject.”  In our view, written communications between and among agency employees and logs and notes relating to verbal communications can reasonably be characterized as “correspondence files” as defined in § 92(9) of the PPPL.  If OTDA’s representation that it did not use those records of communication to make any determination about your client is accurate, it is our opinion that the agency’s response was consistent with law. 

I hope this information proves useful.


Kristin O’Neill
Assistant Director

cc:        Joseph C. Mazza, OTDA