October 23, 1995



Mr. Mark Lagerkvist
News 12 Long Island
One Media Crossways
Woodbury, NY 11797

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. Lagerkvist:

I have received your letter of October 4 and the correspondence attached to it. You have sought an advisory opinion concerning "a public records dispute with the state Workers' Compensation Board."

By way of background, on August 16, you requested "indexes, summaries or any other records that list hearings held from [sic] regarding workers' compensation claims by volunteer firefighters adjudicated through the Board's Hempstead office", as well as any "public records regarding claims adjudicated through the Hempstead office filed by..." several named individuals. Although a subject matter list was made available, records identifiable to particular individuals was denied pursuant to the Freedom of Information Law and the Personal Privacy Protection Law. Specifically, the letter of denial by the Records Access Officer states that:

"The Freedom of Information Law exempts records the disclosure of which would constitute an unwarranted invasion of personal privacy (Public Officers Law §96(1)(c). An unwarranted invasion of personal privacy is defined in Section 82[sic](2)(b)(i) of the Public Officers Law as including medical, employment and credit histories.

"The information in the Board files for the above-named individuals is exempted medical and employment data, and no hearings have been transcribed. In any event, no media representative or other outside party was present at the hearings in these cases. There are, therefore, no public records available concerning these claimants."

In this regard, I offer the following comments.

First, with respect to the initial portion of your request, I am unfamiliar with the Board's filing or record-keeping system and whether it has the ability to retrieve "claims by volunteer firefighters adjudicated through [its] Hempstead office." It has been held that an agency's subject matter list need not be prepared to include a breakdown of its orders or opinions by topic or component [D'Allesandro v. Unemployment Insurance Appeal Board, 56 AD 2d 962 (1977)] and, similarly, that an agency is not required to prepare a list not in existence to reflect, by subject matter, the substance of its final opinions [Wattenmaker v. NYS Employees' Retirement System, 95 AD 2d 910 (1983)]. Therefore, if there is no list or index that refers to the particular adjudications of your interest, I do not believe that the Board would be required to create such a record on your behalf.

It is also noted that §89(3) of the Freedom of Information Law states in part that an applicant must "reasonably describe" the records sought. It has been held that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.

In the case of your request, I am unaware of whether the Board maintains its records in a manner that enables its staff to retrieve records of claims in the manner in which you requested them, i.e., those involving volunteer firefighters that were adjudicated through its Hempstead office.

The second issue pertains to records identifiable to claimants. To put the matter in perspective, as you are aware, the Freedom of Information Law pertains to all agency records and 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. One of the grounds for denial, §87(2)(b), enables an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Additionally, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy. As indicated by the Records Access Officer, the first such example pertains to medical and employment histories.

Relevant to an analysis of rights of access or, conversely, the ability of the Board to deny access to the records sought, is the Personal Privacy Protection Law. That statute deals in part with the disclosure of records or personal information by agencies concerning data subjects. 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 that statute, 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)].

With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No agency may disclose any record or personal information", except in conjunction with a series of exceptions that follow. One of those exceptions, §96(1)(c), involves a case in which a record is "subject to article six of this chapter [the Freedom of Information Law], unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter". Section 89(2-a) of the Freedom of Information Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision two of this section if such disclosure is prohibited under section ninety-six of this chapter". Consequently, if a state agency cannot disclose records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the Freedom of Information Law; alternatively, if disclosure of a record would not constitute an unwarranted invasion of personal privacy and if the record is available under the Freedom of Information Law, it may be disclosed under §96(1)(c). Therefore, the sole question in my view is whether disclosure of the records in question would result in an unwarranted invasion of personal privacy. In my opinion, records of or relating to claims for workers' compensation involve both the medical and employment history of a claimant. Consequently, it would appear that disclosure of records identifiable to claimants would constitute an unwarranted invasion of personal privacy and that, to comply with §96(1) of the Personal Privacy Protection Law and §89(2-a) of the Freedom of Information Law, records identifiable to claimants must be withheld. However, if it can be concluded that information sought is effectively disclosed during a public proceeding, an agency in my opinion could not justifiably contend that disclosure would result in an unwarranted invasion of personal privacy.

In a decision that dealt with different but related matters, the Court of Appeals considered the issue of "whether there is any basis for setting aside the strong public policy in this State of public access to judicial and administrative proceedings" [Herald Co. v. Weisenberg, 59 NY 2d 378, 381 (1983)] and held that "[a]n unemployment insurance hearing is presumed to be open, and may not be closed to the public unless there is demonstrated a compelling reason for closure and only after the affected members of the news media are given an opportunity to be heard" (id., 380). One of the questions before the Court involved the impact of §537 of the Labor Law, which requires that certain records be kept confidential and states in relevant part that:

"[i]nformation acquired from employers and employees pursuant to this article shall be for the exclusive use and information of the commissioner in the discharge of his duties hereunder and shall not be open to the public nor be used in any court, in any action or proceeding pending therein unless the commissioner is a party to such action or proceeding, notwithstanding any other provisions of law."

The court found that "[s]ection 537 does not require closure of hearings at which claimants present their cases for unemployment benefits", and that "section 537 concerns only disclosure of information acquired through the reporting requirements of article 18, and not closure of hearings..." (id., 382). Since the hearing was erroneously closed, the court found that the petitioner "is entitled to a transcript of the hearing", specifying that "[i]nasmuch as no examination was conducted at the time into the reasons for barring public to specific portions of the testimony, however, the affected parties should be given an opportunity to make such a showing, if they so desire" (id., 384). In conjunction with the foregoing, the Court found that portions of a hearing may be closed when there are "compelling reasons" to do so, as in cases of revelation of alcoholism or mental illness, and held that:

"To the extent that such compelling reasons may exist for making certain information confidential, however, less drastic remedies than closing a hearing in its entirety exist. Although an unemployment compensation hearing is not a criminal judicial proceeding, the procedures outlined with respect to such proceedings are apt (see Matter of Westchester Rockland Newspapers v. Leggett, 48 NY2d 430, 442, supra). When a claimant or employer requests closure of an unemployment compensation hearing during the presentation of certain evidence, he or she must demonstrate that a compelling reason exists for such closure. The court does not have occasion here to catalogue the possible reasons justifying closure, other than to note that a presumption of open hearings does not provide a license to publicize the intimate details of claimants' private lives. If the administrative law judge does find a compelling reason for closure, such reason shall be stated on the public record in as much detail as would be consistent with the reason for closure. And, equally important, no hearing should be closed before affected members of the news media are given an opportunity to be heard 'in a preliminary proceeding adequate to determine the magnitude of any genuine public interest' in the matter" (id., 383).

I know of no statute that specifies that workers' compensation proceedings must be open or closed. If there is no such provision, it would appear that the holding in Herald would be applicable to those proceedings. If indeed Herald does apply, the public and the news media would have a presumptive right to attend workers' compensation proceedings, and the testimony and records or exhibits submitted as evidence would be accessible to the public, unless portions of the proceedings were properly closed. In that event, a transcript or recording of testimony, for example, involving a portion of hearing that was closed could be withheld.

Although factually different, an analogy might be made to a situation in which a request was made for records, i.e., statements of witnesses in a criminal investigation, that could ordinarily be withheld under the Freedom of Information Law but which were submitted into evidence in a public judicial proceeding. In that case, it was found that "once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public" [(Moore v. Santucci, 151 AD 2d 677,679 (1989)]. In the context of your inquiry, while records in the nature of medical or employment histories might ordinarily be withheld, once information is disclosed in a public proceeding, I believe that it becomes a matter of public record. The fact that no member of the public or news media is present at a public proceeding, in my opinion, is of no moment; many judicial proceedings, although open to the public, are not attended by any member of the public other than the parties. If the public had the right to have been present, unless otherwise exempted from disclosure, the record of a proceeding would be accessible to the public.

In sum, if members of the public and the news media may properly be excluded from workers' compensation hearings, and if the holding in Herald is inapplicable, I would agree with the determination of the Records Access Officer that the records pertaining to named volunteer firefighters may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy. On the other hand, if the hearings are generally open to the public, or if the holding in Herald applies, I believe that records of those proceedings must be disclosed in a manner consistent with the direction provided in that decision.

In an effort to resolve the dispute and avoid resort to litigation, copies of this opinion will be sent to officials of the Board.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Robert S. Snashall, Chairman
Chaim S. Malks, Records Access Officer
Lisa Scoons, Assistant Director of Operations