January 20, 1993



Ms. Patricia Palmazzy
2031 S. Hill Road
Alpine Acres
Cortland, N.Y. 13045

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.

Dear Ms. Palmazzy:

I have received your letter, which reached this office on January 6.

According to your letter, in 1987, a memorandum was prepared concerning the possibility that a Cortland County official might have exhibited "symptoms of drinking an intoxicating substance" while performing his or her duties. Subsequently, a recommendation was made to conduct "a professional evaluation" to determine whether a "dependency problem" existed. The recommendation also indicated that the County "would support rehabilitation, as well as confidentiality thereof". Notwithstanding the foregoing, copies of the records that you described have been distributed to various county officials. You have asked whether the records in question would be "accessible or deniable" under the Freedom of Information Law.

In this regard, I offer the following comments.

First, as a general matter, the Freedom of Information Law 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 section 87(2)(a) through (i) of the Law. In my view, two of the grounds for denial would likely be relevant.

Section 87(2)(b) permits an agency to withhold records when disclosure would constitute "an unwarranted invasion of personal privacy". Further, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy, the first two of which pertain to: "i. disclosure of employment, medical or credit histories or personal references of applicants for employment;

ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility."

While the records in question may not be medical records, I believe that they are similar, for they pertain to what might be considered a medical condition. Further, I believe that the records are sufficiently personal and intimate that they could be withheld if requested by the public under the Freedom of Information Law on the ground that disclosure would constitute an unwarranted invasion of personal privacy.

Also relevant is §87(2)(g), which authorizes an agency to withhold records 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..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

In sum, it appears that the records at issue could be withheld if and when they are requested under the Freedom of Information Law.

Second, I point out that the language of the Freedom of Information Law indicates that an agency may withhold records, but that it is generally not required to do so. Specifically, the introductory language of §87(2) states in relevant part that: "Each agency shall...make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof" that fall within the grounds for denial that follow (emphasis added).

Further, the Court of Appeals, the state's highest court, has confirmed that the exceptions to rights of access are permissive, rather than mandatory, stating that:

"while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY 2d 652, 567 (1986)].

Therefore, although an agency may in appropriate circumstances withhold records, I do not believe that it is obliged to do so.

Lastly, as you requested, enclosed is "You Should Know", which describes the Personal Privacy Protection Law. That statute would be inapplicable to the situation that you described, for it pertains only to state agencies; local governments, such as counties, are not subject to the Personal Privacy Protection Law.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director


cc: Director of Personnel