June 3, 1994



Mr. Thomas J. McClane
Stonecraft Farm
22 Route 423
Stillwater, NY 12170

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,
unless otherwise indicated.

Dear Mr. McClane:

I have received your letters of May 4 and May 10, both of
which deal with your efforts in obtaining information from the
Departments of Environmental Conservation and Civil Service.

Since your letters did not clearly indicate what has been
requested, I have contacted the records access officers at both
agencies. Based upon your correspondence and my conversations with
them, I offer the following comments.

First, as a general matter, the Freedom of Information Law
pertains to existing records. Section 89(3) of that statute states
in part that an agency need not create a record in response to a
request. Insofar as your requests involve information or records
that are not maintained or which have not been prepared by either
of the agencies in question, the Freedom of Information Law, in my
view, would not apply.

Second, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests. Specifically, §89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision states in relevant part that:

"...any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

Third, it is my understanding that the Department of
Environmental Conservation has granted all but two of your
requests. One involves diskettes that you allegedly claim to have
been personal. I was informed that three such diskettes were found
and have been considered to be work-related. To date, the
diskettes have been withheld and are currently the subject of an

From my perspective, despite your characterization of the
diskettes as "personal", since they are maintained by the
Department, it appears that they constitute "records" subject to
the Freedom of Information Law that would be accessible or
deniable, in whole or in part, depending on their contents.
Section 86(4) of the Freedom of Information Law 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."

Since the diskettes are kept by the Department, I believe that they
are "records" that fall within the scope of the Freedom of
Information Law.

In brief, 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.

Of likely significance 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

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.

The other item that has apparently been withheld consists of
internal agency correspondence pertaining to you. Relevant under
the circumstances is the Personal Privacy Protection Law, which
pertains to a class of records, those that include personal
information that can be retrieved by means of an individual's name
or other personal identifier. In brief, the Personal Privacy
Protection Law generally requires that state agencies disclose
records about data subjects to those persons. A "data subject" is
"any natural person about whom personal information has been
collected by an agency" [Personal Privacy Protection Law, §92(3)].
"Personal information" is defined to mean "any information
concerning a data subject which, because of name,number, symbol,
mark or other identifier, can be used to identify that data
subject" [§92(7)]. For purposes of the Personal Privacy Protection
Law, the term "record" is defined to mean "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" [§92(9)].

Under §95 of the Personal Privacy Protection Law, a data
subject has the right to obtain from a state agency records
pertaining to him or her, unless the records sought fall within the
scope of exceptions appearing in subdivisions (5), (6) or (7) of
that section. I point out that none of those exceptions is
comparable to §87(2)(g) of the Freedom of Information Law
concerning inter-agency and intra-agency materials. Consequently,
the Personal Privacy Protection Law may provide the subject of
records with rights of access that exceed rights conferred by the
Freedom of Information Law. Further, based upon my understanding
of the general content of the record that has been withheld, it
would be subject to rights conferred by the Personal Privacy
Protection Law to you as a data subject, and the exceptions do not
appear to be applicable as a basis for a denial.

Lastly, the records access officer for the Department of Civil
Service indicated that the agency has disclosed all records to you
that it maintains that fall within the scope of your requests. For
purposes of clarification, she specified that the Department often
does not directly pay or engage persons who perform certain duties
for the Department and its Employee Health Service. Rather,
contractors, i.e., firms are paid by the Department, and those
entities, in turn, pay individuals that they employ or retain. In
those circumstances, it is unlikely that the Department would
maintain detailed records pertaining to those individuals.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Tom Rider
Linda Decker