FOIL AO 19807

May 26, 2021

James Madore Newsday

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.

Dear Mr. Madore:

I am writing in response to your request for an advisory opinion regarding the manner in which the Nassau County Industrial Development Agency responded to your Freedom of Information Law (“FOIL”) request for “a copy of records from 2020 and 2021 related to Brian J. Noone, former consultant to the Nassau County Industrial Development Agency.”

FOIL is based upon a presumption of access. 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)-(q) of the Law. The agency’s records access officer denied your request in its entirety stating, “this agency has determined that your request can be denied based on one or more exceptions appearing in §87(2)(e) of the Freedom of Information Law.” In order for a record or portion of a record to be withheld under § 87(2)(e), it must be both “compiled for law enforcement purposes” and the agency must determine that disclosure would cause one or more of the statutorily enumerated harms:

  1. interfere with law enforcement investigations or judicial proceedings;
  2. deprive a person of a right to a fair trial or impartial adjudication;
  3. identify a confidential source or disclose confidential information relating to a criminal investigation; or
  4. reveal criminal investigative techniques or procedures, except routine techniques and procedures.

In a relatively recent Albany County Supreme Court decision, the court held that for the law enforcement exemption to apply, the record only need be created, gathered, or used by an agency for a law enforcement purpose at some time before the agency invokes the exemption. See Matter of New York Times Co. v. New York State Executive Chamber, 57 Misc.3d 405, 415-16 (Supr. Ct. Albany Co. 2017). However, the court also held in that instance that the agency which possessed the records could not demonstrate that disclosure would interfere with an investigation or judicial proceeding because the agency had no knowledge of the prosecutor’s strategy in the judicial proceeding. See id. at 421.

Based upon the information provided, I am unable to offer an opinion as to whether the records requested were, in fact, compiled for law enforcement purposes by the agency. Further, if the Nassau County Industrial Development Agency is not the entity that is conducting the investigation, it is unclear how it could know the impact of disclosure on another agency’s law enforcement investigation or a judicial proceeding.

Finally, I note that the agency has issued what we term a “blanket denial” of access. The introductory language of § 87(2) of FOIL 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 a 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 the law 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 redacted prior to disclosing the remainder.

I hope this information proves useful.


/s/ Kristin O’Neill

Kristin O’Neill
Assistant Director

cc:    Colleen Pereira, Records Access Officer