July 28, 1995



Mr. William J. Broedel
5500 Flangan Road
Marcy, NY 13403

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: Broedel:

I have received your letter of July 19, as well as the materials attached to it. You have sought an advisory opinion concerning your unsuccessful efforts to gain access to a statement made by a state trooper that was used in relation to a matter that led to disciplinary action taken against you by the SUNY Institute of Technology, which is part of the State University of New York.

By way of background, you requested the record in question in 1993 pursuant the Freedom of Information Law, and access was denied on the basis of §87(2)(g) of the Law. That provision permits 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."

You have contended that the statement made by the trooper "is a final agency policy or determination" because "[t]he college used this statement to make a decision that they had grounds to draft a Notice of Discipline..." You requested the same record recently pursuant to the Personal Privacy Protection Law and argued again that the statement is a final agency policy or determination. The State University denied access for the same reason as that offered in 1993.

In this regard, I agree with the finding by the State University that the statement in question does not constitute a final agency policy or determination. While the statement might have been used or influential in considering a course of action, it could not in my view be characterized as final. The trooper who made the statement could not have made a decision to discipline you; only University officials had that authority. Therefore, it appears that the denial was appropriate under the Freedom of Information Law.

Notwithstanding the foregoing, your rights under the Freedom of Information Law may differ from those accorded by the Personal Privacy Protection Law. The former deals with rights of access conferred upon the public generally; the latter deals with rights of access conferred upon an individual, a "data subject", to records pertaining to him or her. Based on the responses to requests by University officials, the denials of access were grounded solely upon the Freedom of Information Law; no consideration appears to have been given to the Personal Privacy Protection Law.

Under §95(1) of that statute, a state agency is required to disclose records pertaining to a data subject to that person, unless the records can be withheld pursuant to §95(5), or if rights conferred by §95(1) do not apply due to the operation of 95(7). Section 95(5)(a) authorizes an agency to withhold information compiled for law enforcement purposes when disclosure 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."

From my perspective, since the events leading to your discipline occurred long ago, it is doubtful that §95(5)(a) would serve as a valid basis for denial.

Section 95(7) states that "[t]his section shall not apply to public safety agency records." Stated differently, rights or access conferred upon a data subject by §95(1) do not apply to public safety agency records. The phrase "public safety agency record" is defined to mean:

"a record of the commission of corrections, the temporary state commission of investigation, the department of correctional services, the division for youth, the division of probation or the division of state police or of any agency of component thereof whose primary function is the enforcement of civil or criminal statutes if such record pertains to investigation, law enforcement, confinement of persons in correctional facilities or supervision of persons pursuant to criminal conviction or court order, and any records maintained by the division of criminal justice services pursuant to sections eight hundred thirty-seven, eight hundred thirty seven-a, eight hundred thirty-seven-c, eight hundred thirty-eight, eight hundred thirty-nine, eight hundred forty-five, and eight hundred forty-five-a of the executive law."

Based on the foregoing, if the record is maintained by an "agency or component thereof whose primary function is the enforcement of civil or criminal statutes if such record pertains to investigation," the Personal Privacy Protection Law would not apply as a basis for seeking it.

In sum, it appears that the statement was properly withheld under the Freedom of Information Law, but that it should likely be disclosed under the Personal Privacy Protection Law, unless it is a public safety agency record.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Patrick J. Hunt
Milton L. Smith