FOI opinion 8/26/1988

August 26, 1988

Mr. M. J. Dowden
(address deleted)

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff opinion is based solely upon the facts presented in your correspondence.

Dear Mr. Dowden

As you are aware, I have received your letter of August 12 and the correspondence attached to it. Please accept my apologies for the delay in response.

You have requested an advisory opinion concerning a denial of a request for a record of the Village of Brookville. Specifically, you wrote that the record in question is:

“a letter from the Mayor in which he complained of a spree of vandalism which involved L.I.U. students. The letter from L.I.U. mentions the name of a student who was arrested and the village mayor have mentioned this as grounds for the denial of access. The letter goes on to detail some of the terms of the Village of Brookville/L.I.U. relationship, including the payment in lieu of taxes made by L.I.U., the amount paid to the local police dept. for overtime costs, etc.”.

You added that “this letter was read at a public meeting of the Village Board of Trustees,” which you attended. Nevertheless, in response to your appeal, the Village Attorney, Robert D. Kops, denied the request, citing section 87 (2) (e) of the Freedom of Information Law.

In this regard, I offer the following comments.

First, as a general matter, the Freedom of Information Law is based on 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 of the grounds for denial appearing in section 87 (2) (a) through (i) of the Law. Further, the introductory language of section 87 (2) refers to the capacity to withhold “records or portions thereof” that fall within the scope of one or more of the grounds for denial that follow. The phrase quoted in the preceding sentence indicates that a single record might be available or deniable in whole or in part. That phrase, in my view, also imposes an obligation upon agency officials to review records sought in their entirety to determine which portions, if any, may justifiably be withheld.

Second, it is questionable, in my opinion, whether the provision upon which the Village relied to withhold the letter is relevant. Even if it is relevant, based upon the facts as you described them, I do not believe that it could appropriately be asserted. That provision, section 87 (2) (e), permits an agency to 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 relative to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures…”

It is unlikely in my opinion that a letter sent by an official of Long Island University to the Board of Trustees could be characterized as having been “compiled for law enforcement purposes.” Even if that aspect of the letter pertaining to an arrest or perhaps an investigation could be considered as having been compiled for law enforcement purposes, I do not believe that the remainder, which deals with the relationship between the University and the Village. and their financial arrangements, could be so characterized. If section 87 (2) (e) is inapplicable, there would apparently be no basis for withholding.

Assuming that the letter, or portions of it, are considered to be records compiled for law enforcement purposes, the Village could withhold its contents only to the extent that disclosure would result in the harm described in subparagraphs (i) through (iv) of section 87 (2) (e). Since the letter was read at an open meeting during which any member of the public could have been present and, in fact, could have tape recorded the reading of the letter. [see Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD 2d 924 (1985)], I do not believe that disclosure of the letter would, at this juncture, interfere with an investigation, deprive a person of a right to a fair trial, identify a confidential source or reveal non-routine criminal investigative techniques or procedures. In short, if indeed the letter was read aloud at a public meeting, I do not believe that section 87 (2) (e), or any other ground for denial, could justifiably be asserted to withhold the letter.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.

Sincerely,
Robert J. Freeman
Executive Director

RJF:gc

cc: Robert D. Kops, Village Attorney
Board of Trustees, Village of Brookville

 

 

 

FOI opinion 1/4/1994

January 4, 1994

 

M.J. Dowden, Chairman
Village Residents Party
(address deleted)

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. Dowden:

I have received your letter of December 10 and the materials
attached to it, as well as related correspondence sent by the
Village Attorney for the Village of Brookville.

The correspondence indicates that you requested various
records from the Village on November 8, including minutes of a
meeting of the Board of Trustees and documents appended to the
minutes, financial statements, treasurer’s reports and motions
concerning Village elections. On November 17, the Clerk/Treasurer
responded, stating that he had been “directed by the Mayor to
refuse your request…” In response to an appeal to the Board of
Trustees, Robert Kops, the Village Attorney, wrote that it is the
Board’s “understanding that you do not reside in the Village of
Brookville” but rather in the State of Virginia. He added that
“[s]uch being the case the supplying of the documents you request
would be ‘…an unwarranted invasion of personal privacy…’ of our
taxpaying citizens”. Based upon the foregoing and the Board’s
belief that “your request does not comply with the intent of the
law”, was “not made in good faith and only constitutes another form
of harassment”, the appeal was denied.

You have sought my views on the matter and advice “on how to
proceed.”

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.

Nothing in any response by Village officials refers to any of
the grounds for denial. Further, from my perspective, the kinds of
records that you requested, i.e., minutes of meetings, a
municipality’s financial statements, and motions made during open
meetings, are clearly accessible. In short, as I understand the
nature of the records sought, none of the grounds for denial of
access could appropriately be asserted.

Second, it has been held that when records are accessible
under the Freedom of Information Law, they must be made equally
available to any person, without regard to one’s status or interest
[see Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75
(1984); Burke v. Yudelson, 51 AD 2d 673 (1976); Duncan v. Bradford
Central School District, 394 NY 2d 362 (1976)]. Based upon the
language of the Freedom of Information Law and its judicial
interpretation, whether you reside in Brookville or the State of
Virginia, whether you are a citizen or an alien, whether you seek
the records for personal reasons, in good faith or otherwise, I
believe that you have the right to obtain records accessible under
the Law. Further, while I am unaware of your motivation, your
legal residence or your intended use of the records, it is noted
that the Court of Appeals has stated that “[t]he potential for
abuse through FOIL is in a sense a price of open government, and
should not be invoked to undermine the statute” (Farbman, supra,
82).

Third, it is emphasized that the courts have consistently
interpreted the Freedom of Information Law in a manner that fosters
maximum access. As stated by the Court of Appeals:

“To be sure, the balance is presumptively
struck in favor of disclosure, but in eight
specific, narrowly constructed instances where
the governmental agency convincingly
demonstrates its need, disclosure will not be
ordered (Public Officers Law, section 87, subd
2). Thus, the agency does not have carte
blanche to withhold any information it
pleases. Rather, it is required to articulate
particularized and specific justification and,
if necessary, submit the requested materials
to the courts for in camera inspection, to
exempt its records from disclosure (see Church
of Scientology of N.Y. v. State of New York,
46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of
one of these statutory exemptions may
disclosure be withheld” [Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)].”

In another decision rendered by the Court of Appeals, it was held
that:

“Exemptions are to be narrowly construed to
provide maximum access, and the agency seeking
to prevent disclosure carries the burden of
demonstrating that the requested material
falls squarely within a FOIL exemption by
articulating a particularized and specific
justification for denying access” [Capital
Newspapers v. Burns, 67 NY 2d 562, 566 (1986);
see also, Farbman & Sons v. New York City,
supra,; and Fink, supra].

Moreover, in the same decision, in a statement regarding the intent
and utility of the Freedom of Information Law, it was found that:

“The Freedom of Information Law expresses this
State’s strong commitment to open government
and public accountability and imposes a broad
standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New
York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance
of the public’s vested and inherent ‘right to
know’, affords all citizens the means to
obtain information concerning the day-to-day
functioning of State and local government thus
providing the electorate with sufficient
information ‘to make intelligent, informed
choices with respect to both the direction and
scope of governmental activities’ and with an
effective tool for exposing waste, negligence
and abuse on the part of government officers”
(id., 565-566).

Lastly, when a request is denied access following an appeal,
an applicant may seek judicial review of the denial by initiating
a judicial proceeding under Article 78 of the Civil Practice Law
and Rules. It is noted when such a proceeding is brought under the
Freedom of Information Law, the agency has the burden of proof.
Further, a court may award attorney’s fees, payable by an agency,
in certain circumstances. Specifically, §89(4)(c) of the Freedom
of Information Law states that:

“The court in such a proceeding may assess,
against such agency involved, reasonable
attorney’s fees and other litigation costs
reasonably incurred by such person in any case
under the provisions of this section in which
such person has substantially prevailed,
provided, that such attorney’s fees and
litigation costs may be recovered only where
the court finds that:

i. the record involved was, in fact, of
clearly significant interest to the general
public: and

ii. the agency lacked a reasonable basis in
law for withholding the record.”

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to Village officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Trustees
Jean Pailet, Clerk/Treasurer
Robert D. Kops, Village Attorney