July 21, 1995



Mr. Marcel J. Lajoy
Attorney at Law
1842 Western Avenue
Albany, NY 12203

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. Lajoy:

I have received your letter of July 10, as well as the materials attached to it.

According to your letter, from March to July in 1994, the State Education Department conducted an audit of the Canajoharie Central School and the Hamilton-Fulton-Montgomery BOCES adult education programs for certain school years. As a result of the audit and investigations by the Montgomery County Sheriff's Department, three teachers were arrested. You indicated that the Sheriff's Department "announced the conclusion of its investigation on June 24" of this year. Consequently, you asked whether "either the State Education Department or the school districts have right to refuse release of the audits on grounds that (1) it is an invasion of privacy of certain individuals, or (2) because the District Attorney's Office is contemplating convening a grand jury to consider further charges against on of the three teachers already arrested."

By way of background, you requested the audit earlier this year, and the State Education Department denied access on January 24 based on considerations of personal privacy and because the record was compiled for law enforcement purposes and disclosure would interfere with law enforcement investigations. However, an article dated June 24 indicates that two teachers had been charged on the preceding day following a "yearlong investigation" which "ended" with the arrests. The article also identifies you as the attorney for one of those charged.

From my perspective, it is possible that the denial of access was appropriate in January. It is questionable, however, whether the same conclusion can be justified now in view of recent events. In this regard, I offer the following comments.

First, 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.

Second, pursuant to §87(2)(g)(iv) of the Law, "external audits", such as those prepared by the Education Department concerning a school district or a BOCES, are typically accessible. However, in some circumstances, audits or perhaps portions thereof might properly be withheld.

In most instances, I believe that audits are prepared in the ordinary course of business. Nevertheless, if, for example, there is a suspicion of criminal activity or similar misconduct, an audit may be prepared for a different reason. Potentially relevant on those occasions is §87(2)(e), which pertains to the ability to withhold records that "are compiled for law enforcement purposes." If, in this case, the audit was conducted because of a suspicion that there may have been criminal activity, it is likely in my view that it could be characterized as having been compiled for law enforcement purposes. The extent to which §87(2)(e) may be properly be asserted, however, is dependent upon attendant facts and circumstances and the effects of disclosure. The cited provision states that an agency may withhold records that: "are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

At this juncture, the investigation appears to have ended, and if that is so, disclosure would no longer interfere with a law enforcement investigation, and §87(2)(e)(i) would no longer serve as a basis for denial. Whether other aspects of §87(2)(e) might be relevant is unknown in view of the incomplete facts involving the matter and lack of knowledge of the specific contents of the audit. Insofar as they may properly be asserted, it is likely that portions of the documentation could be deleted and the remainder disclosed, unless a different ground for denial could be asserted.

The remaining ground for denial of significance, §87(2)(b), provides that an agency may withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Since the names of those who have allegedly engaged in misconduct have been made known to the public via the news media, again, the ability to justify a denial of access based on consideration of the privacy of those individuals is, in my opinion, questionable. It is possible, however, that the audit includes highly personal or intimate details regarding the lives of those whose names have been disclosed or that the audit identifies others, i.e., those who were interviewed or who may be characterized as witnesses. In those instances, there may be a valid basis for withholding portions of the materials.

Lastly, according to the Freedom of Information Law, an individual cannot engage in an unwarranted invasion of his or her own privacy. Section 89(2)(c) of the Law states that, unless records can otherwise be withheld [i.e., pursuant to §87(2)(e)], "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy...ii.when the person to whom a record pertains consents in writing to disclosure; [or] iii. when upon presenting reasonable proof of identity, a person seeks access to records pertaining to him." Therefore, if your client requests the record, or if you request it with his consent on his behalf, an agency would not in my opinion have the ability to withhold any portion of the record pertaining to him on the ground that disclosure would result in an unwarranted invasion of privacy.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Gene G. Snay
Records Access Officer, Canajoharie Central School District