March 15, 1995



Mr. Danny Burstein
501 West 123 Street
New York, NY 10027

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.

Dear Mr. Burstein:

I have received your letter of February 10 and various related materials. You have sought guidance in your efforts to obtain records from the New York City Conflicts of Interest Board.

In response to your requests, you were informed that the records would be withheld pursuant to §2603(k) of the New York City Charter. That provision states that:

"Except as otherwise provided in this chapter, the records, reports, memoranda and files of the board shall be confidential and shall not be subject to public scrutiny."

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 §87(2)(a) through (i) of the Law.

The initial ground for denial, §87(2)(a), deals with records that may often be characterized as "confidential", for it enables an agency to withhold records that "are specifically exempted from disclosure by state or federal statute." It has been held by several courts, including the Court of Appeals, that an agency's regulations or the provisions of a local enactment, such as an administrative code, charter or ordinance, for example, do not constitute a "statute" [see e.g., Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)]. For purposes of the Freedom of Information Law, a statute would be an enactment of the State Legislature or Congress. Therefore, if §2603 of the New York City Charter was not enacted by the State Legislature, it would not, based upon judicial interpretations of the Freedom of Information Law, constitute a "statute" that exempts records from disclosure. Conversely, if it was enacted by the State Legislature, the records in question would, in my view, be specifically exempted from disclosure by statute.

Assuming that the section of the Charter at issue does not constitute a "statute", I believe that the records maintained by the Board would be subject to the provisions of the Freedom of Information Law. This is not to suggest that all records of the Board must be disclosed, for various records or portions thereof would likely fall within one or more of the grounds for denial appearing in the Freedom of Information Law; rather, I am suggesting that §2603(k) of the Charter would not serve as a statutory exemption from disclosure that would serve as a basis for withholding records.

Second, the Freedom of Information Law pertains to existing records, and §89(3) of that statute provides in part that an agency need not create a record in response to a request. By means of example in the context of your request, if the Board does not maintain a list of personnel at a certain division of the Health and Hospitals Corporation who have requested opinions from the Board since 1990, the Board would not be required to prepare such a list on your behalf.

Third, if I understand the functions of the Board accurately, names or other identifying details pertaining to those who seek opinions or are the subjects of decisions or determinations could be withheld, if not under the City Charter, under §87(2)(b) of the Freedom of Information Law as an "unwarranted invasion of personal privacy." If the Freedom of Information Law is applicable, it appears that decisions or determinations by the Board would be available, following the deletion of identifying details when disclosure of those details constitute an unwarranted invasion of personal privacy.

Lastly, you wrote that the denial of your request did not include reference to your right to appeal. Here I point out that §89(4)(a) of the Freedom of Information Law 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 of the entity, or the person therefor designated by such 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."

Further, the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), which govern the procedural aspects of the Law, state that:

"(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall hear appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.

(b) Denial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body established to hear appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer" (section 1401.7).

It is also noted that the state's highest court has held that a failure to inform a person denied access to records of the right to appeal enables that person to seek judicial review of a denial. Citing the Committee's regulations and the Freedom of Information Law, the Court of Appeals in Barrett v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to advise petitioner of the availability of an administrative appeal in the office (see, 21 NYCRR 1401.7[b]) and failed to demonstrate in the proceeding that the procedures for such an appeal had, in fact, even been established (see, Public Officers Law [section] 87[1][b], he cannot be heard to complain that petitioner failed to exhaust his administrative remedies" [74 NY 2d 907, 909 (1989)].

In sum, an agency's records access officer has the duty individually, or in that person's role of coordinating the response to a request, to inform a person denied access of the right to appeal as well as the name and address of the person or body to whom an appeal may be directed. I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Hugh B. Weinberg
Jo-Antoinette Frey