August 11, 1993



Ms. Dianne E. Dixon
Deputy Commissioner
Law Enforcement Bureau
Commission on Human Rights
40 Rector Street
New York, N.Y. 10006

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. Dixon:

I have received your letter of August 6 addressed to William
Bookman, Chairman of the Committee on Open Government. As
indicated above, the staff of the Committee is authorized to
prepare advisory opinions on its behalf.

You have asked "whether personnel records lose their exempt
status under the FOIL when these records become part of an
investigation file of another agency, and a FOIL request is made
for the file." By way of background, you wrote that your agency,
the New York City Commission on Human Rights, investigates and
prosecutes discriminatory acts and that many of its cases are
brought against other city agencies which, by law, must cooperate.
You added that it is often necessary in the course of an
investigation to request "the personnel records of non-party
employees as a means of evaluating the treatment of the complainant
in determining whether probable cause exists to credit the
allegations of discrimination." In conjunction with the foregoing,
you indicated that "a question has arisen concerning whether [you]
are able to assert FOIL's exemption for personnel records, given
that these are not the personnel records of [y]our agency." It is
your understanding that you "cannot claim that these records are
exempt because they are not [y]our personnel records."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to agency
records, and §86(4) of that statute defines the term "record"
expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

The Court of Appeals has construed the definition as broadly
as its specific language suggests. The first such decision that
dealt squarely with the scope of the term "record" involved
documents pertaining to a lottery sponsored by a fire department.
Although the agency contended that the documents did not pertain to
the performance of its official duties, i.e., fighting fires, but
rather to a "nongovernmental" activity, the Court rejected the
claim of a "governmental versus nongovernmental dichotomy" [see
Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581
(1980)] and found that the documents constituted "records" subject
to rights of access granted by the Law. Moreover, the Court
determined that:

"The statutory definition of 'record' makes
nothing turn on the purpose for which it
relates. This conclusion accords with the
spirit as well as the letter of the statute.
For not only are the expanding boundaries of
governmental activity increasingly difficult
to draw, but in perception, if not in
actuality, there is bound to be considerable
crossover between governmental and
nongovernmental activities, especially where
both are carried on by the same person or
persons" (id.).

In a decision involving records prepared by corporate boards
furnished voluntarily to a state agency, the Court of Appeals
reversed a finding that the documents were not "records," thereby
rejecting a claim that the documents "were the private property of
the intervenors, voluntarily put in the respondents' 'custody' for
convenience under a promise of confidentiality" [Washington Post v.
Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the
Court relied upon the definition of "record" and reiterated that
the purpose for which a document was prepared, the function to
which it relates, or its origin are irrelevant. Moreover, the
decision indicated that "When the plain language of the statute is
precise and unambiguous, it is determinative" (id. at 565).

Based upon the foregoing, when documents come into the
possession of the Commission on Human Rights, even though they may
have been forwarded by another City agency, for the purpose of the
Freedom of Information Law, I believe that they constitute
"records" of the Commission subject to the Freedom of Information
Law. Consequently, in my view, while the Commission is obliged to
disclose any such records to the extent required by the Freedom of
Information Law, it also has the ability to withhold those records
in accordance with the grounds for denial appearing in that
statute. In short, even though the Commission did not prepare the
records in question and the subjects of those records are not its
employees, the records are nonetheless maintained by the Commission
and, therefore may be disclosed or withheld by the Commission
pursuant to disclosure and/or denial provisions of the Freedom of
Information Law. Similarly, I believe that the Commission would
have the same duty to disclose or authority to withhold the records
as the agency that is the primary custodian of the records.

Second, there is no specific reference or exemption in the
Freedom of Information Law regarding personnel records, and the
nature and content of those records may differ from one agency to
another, and from one employee to another. In any case, neither
the characterization of documents as personnel records nor their
placement in personnel files would necessarily render those
documents confidential or deniable under the Freedom of Information
Law (see Steinmetz v. Board of Education, East Moriches, Sup. Ct.,
Suffolk Cty., NYLJ, October 30, 1980). On the contrary, the
contents of those documents serve as the relevant factors in
determining the extent to which they are available or deniable
under the Freedom of Information Law.

Third, as you are aware, 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 §87(2)(a) through (i) of the Law.

From my perspective, it is likely that two of the grounds for
denial would be most relevant in ascertaining rights of access to
the records at issue. Section 87(2)(b) permits an agency to
withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy." Again, in my opinion,
the nature and content of personally identifiable information, not
necessarily the agency that maintains it, would be the factors to
consider in an analysis of rights of access or the authority to
withhold. A deletion that you currently make can serve as an
example. Specifically, whether the Commission or an employing
agency maintains an employee's social security number is irrelevant
in terms of the Freedom of Information Law; either in my view could
withhold that item as an unwarranted invasion of personal privacy,
for the infringement upon privacy and the effect of disclosure
would be same, regardless of which agency maintains or perhaps
discloses that kind of personal information.

The other ground for denial of likely significance, §87(2)(g),
permits an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or

ii. instructions to staff that affect the

iii. final agency policy or determinations;

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 my view, opinions expressed by non-party employees in the
context of an investigation, for example, could be withheld under
§87(2)(g), and perhaps §87(2)(b) as well.

Lastly, since you referred to agencies' "fear that they may be
incurring liability from these disclosures," I point out that the
Freedom of Information Law is permissive. While an agency may
withhold records in appropriate circumstances, it is not required
to do so. As stated by the Court of Appeals:

"while an agency is permitted to restrict
access to those records falling which 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 562, 567 (1986)].

Therefore, while an agency may withhold records in accordance with
the grounds for denial, it is ordinarily not obliged to do so.
This is not to suggest that records otherwise deniable should be
disclosed. While I am not an expert on the subject, consideration
should be given to the possibility that inappropriate disclosures
could result in claims regarding stigma under the federal Civil
Rights Act.

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