FROM: Robert Freeman,
New York State Committee on Open Government
FOIL-AO-17887
November 10, 2009
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
As you are aware, I have received a copy of your letter of appeal addressed to
Michael Best, General Counsel to the New York City Department of Education,
concerning the denial by the Department’s records access officer of a request
made pursuant to the Freedom of Information Law by Daily News writer, Juan
Gonzalez. In the letter you indicated that, through its receipt by this
office, you are seeking an advisory opinion concerning the propriety of the
Department’s response.
In his request, Mr. Gonzalez sought the following:
“• copies of any correspondence, including email and blackberry
messages, between Eva Moskowitz, CEO of both Harlem Success Academy and Success
Charter Network, and Schools Chancellor Joel Klein, that specifically relate to
requests from Moskowitz for DOE approval of or assistance to Harlem Success in
expanding the number of students and/or schools operated by her organizations,
and in promoting and marketing her schools to the general public, any an all
written requests and/or proposals made by Moskowitz between January 1, 2006 and
July 1, 2009 for additional physical space in public school buildings for her
charter program.
• copies of any correspondence on the same subject matters,
including email and blackberry messages, between Moskowitz and Michael Duffy,
executive director of the office of charter schools, for the period of January
1, 2006 to July 1, 2009.
• copies of any correspondence on the same subject matters,
including email and blackberry messages, between Moskowitz and John White,
chief operating officer of Portfolio Development, for the period of January 1,
2006 to July 1, 2009.”
The records access officer, Mr. Joseph A. Baranello, denied the request in its
entirety, offering several grounds for denial appearing in §87(2) of the
Freedom of Information Law. He referred first to §87(2)(a), which
pertains to records that “are specifically exempted from disclosure by state or
federal statute.” In that regard, he cited the Family Educational Rights
and Privacy Act, 20 USC §1232g (“FERPA”) concerning records identifiable to
students and §§4503 and 3101 of the CPLR, which deal respectively with the
attorney-client privilege and attorney work product. Next, reference was
made to §§87(2)(b) and 89(2), both of which permit an agency to deny access
insofar as disclosure would constitute “an unwarranted invasion of personal
privacy.” And third, he cited §87(2)(g) concerning inter-agency and intra-agency
materials.
In consideration of the grounds for denial referenced by Mr. Baranello and my
understanding of the nature of the records at issue, I offer the following
comments.
First, and significantly in consideration of the absence of any disclosure by
the Department in response to the request, and as you know, 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 (j) of the Law. It is emphasized that the introductory
language of §87(2) refers to the authority to withhold "records or
portions thereof" that fall within the scope of the exceptions that
follow. In my view, the phrase quoted in the preceding sentence evidences
a recognition on the part of the Legislature that a single record or report,
for example, might include portions that are available under the statute, as
well as portions that might justifiably be withheld. That being so, I
believe that it also imposes an obligation on an agency to review records
sought, in their entirety, to determine which portions, if any, might properly
be withheld or deleted prior to disclosing the remainder.
The Court of Appeals confirmed its general view of the intent of the Freedom of
Information Law in Gould v.
New York City Police Department, stating that:
"To ensure maximum access to government records, the 'exemptions
are to be narrowly construed, with the burden resting on the agency to
demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York
Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588
N.E.2d 750 see, Public Officers Law § 89[4][b]).
As this Court has stated, '[o]nly where the material requested falls squarely
within the ambit of one of these statutory exemptions may disclosure be
withheld' (Matter of Fink v.
Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d
463)" [89 NY2d 267, 275 (1996)].
Just as significant, the Court in Gould repeatedly specified that a blanket
denial of access to records is inconsistent with the requirements of the
Freedom of Information Law. In that case, the New York City Police
Department contended that complaint follow up reports could be withheld in
their entirety on the ground that they fall within the exception regarding
intra-agency materials, §87(2)(g), one of the exceptions cited in response to
your columnist’s request. The Court, however, wrote that:
"Petitioners contend that because the complaint follow-up reports contain
factual data, the exemption does not justify complete nondisclosure of the
reports. We agree" (id., 276), and stated as a general
principle that "blanket exemptions for particular types of documents are
inimical to FOIL's policy of open government" (id., 275). The
Court also offered guidance to agencies and lower courts in determining rights
of access and referred to several decisions it had previously rendered, stating
that:
"...to invoke one of the exemptions of section 87(2), the
agency must articulate 'particularized and specific justification' for not
disclosing requested documents (Matter
of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467,
393 N.E.2d 463). If the court is unable to determine whether withheld
documents fall entirely within the scope of the asserted exemption, it should
conduct an in camera inspection of representative documents and order
disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v.
Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d
74; Matter of Farbman & Sons v. New York City Health
& Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464
N.E.2d 437)" (id.).
In the context of the request, the Department engaged in a blanket denial of
access in a manner which, in my view, is equally inappropriate. I am not
suggesting that the records sought must be disclosed in full. Rather,
based on the direction given by the Court of Appeals in several decisions, the
records must be reviewed by that agency for the purpose of identifying those
portions of the records that might fall within the scope of one or more of the
grounds for denial of access. As the Court stated later in the decision:
"Indeed, the Police Department is entitled to withhold complaint follow-up
reports, or specific portions thereof,
under any other applicable exemption, such as the law-enforcement exemption or
the public-safety exemption, as long as the requisite particularized showing is
made" (id., 277; emphasis added).
Second, I agree that those portions of the records sought that include
information that is personally identifiable to a student must be redacted to
comply with FERPA. I do not believe, however, that the provisions of the CPLR
cited in the response are applicable or, therefore, that they may properly be
asserted.
In brief, FERPA applies to all educational agencies or institutions in the
United States that participate in federal funding or loan programs. It
generally provides parents of minor students rights of access to education
records, a term broadly defined in federal regulations, 34 CFR §99.3, to parents
of the students. Concurrently, it generally prohibits disclosure of
personally identifiable information pertaining to a student to the public,
unless a parent consents to disclosure. If portions of the records at
issue include information that is personally identifiable to a student, those
portions must, in my view, be withheld. As emphasized earlier, only those
portions of the records subject to FERPA may be redacted; the remainder must be
disclosed, or conversely, may be withheld, in accordance with the provisions of
the Freedom of Information Law.
As you are aware, §4503 of the CPLR is a codification of the attorney-client
privilege, and §3101 creates an exemption from discovery regarding the work
product of an attorney. Section 3101 pertains disclosure in a context
related to litigation, and subdivision (a) reflects the general principle that
"[t]here shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action..." It is intended to shield
from an adversary records that would result in a strategic advantage or
disadvantage, as the case may be. In a decision in which it was
determined that records could justifiably be withheld as attorney work product,
the "disputed documents" were "clearly work product
documents which contain the opinions, reflections and thought process of
partners and associates" of a law firm "which have not been
communicated or shown to individuals outside of that law firm" [Estate
of Johnson, 538 NYS 2d 173 (1989)]. It does not appear that the
records at issue relate to litigation or that the intent of §3101(c) is
pertinent in the context of your request.
In another decision in which the ability to withhold records based on the
assertion of the attorney-client privilege or that records reflect the work
product of an attorney was discussed, it was found that:
"The attorney-client privilege requires some showing that the
subject information was disclosed in a confidential communication to an
attorney for the purpose of obtaining legal advice (Matter of Priest v. Hennessy, 51 N.Y.2d 62,
68-69, 431 N.Y.S.2d 511, 409 N.E.2d 983). The work-product privilege
requires an attorney affidavit showing that the information was generated by an
attorney for the purpose of litigation (see,
Warren v. New York City Tr. Auth., 34 A.D.2d 749, 310 N.Y.S.2d
277). The burden of satisfying each element of the privilege falls on the
party asserting it (Priest
v. Hennessy, supra, 51 N.Y.2d at 69, 431 N.Y.S. 2d 511, 409 N.E.2d
983), and conclusory assertions will not suffice (Witt v. Triangle Steel Prods. Corp., 103
A.D.2d 742, 477 N.Y.S.2d 210)" [Coastal Oil New York, Inc. v. Peck,
[184 AD 2d 241 (1992)].
In a discussion of the parameters of the attorney-client relationship and the
conditions precedent to its initiation, it has been held that:
"In general, 'the privilege applies only if (1) the asserted
holder of the privilege is or sought to become a client; (2) the person to whom
the communication was made (a) is a member of the bar of a court, or his
subordinate and (b) in connection with this communication relates to a fact of
which the attorney was informed (a) by his client (b) without the presence of
strangers (c) for the purpose of securing primarily either (i) an opinion on
law or (ii) legal services (iii) assistance in some legal proceeding, and not
(d) for the purpose of committing a crime or tort; and (4) the privilege has
been (a) claimed and (b) not waived by the client'" [People v. Belge,
59 AD 2d 307, 399 NYS 2d 539, 540 (1977)].
In short, based on the foregoing and in consideration of the nature of the
content of the records at issue, I do not believe that they could be
characterized as attorney work product. Further, since it serves as a
barrier to disclosure, it is emphasized that the courts have narrowly construed
the exemption concerning attorney work product. It has been held that
only the work product that involves the learning and professional skills
possessed only by an attorney is exempt from disclosure [see Soper v. Wilkinson Match, 176
Ad2d 1025 (1991); Hoffman v.
Ro-San Manor, 73 AD2d 207 (1980)]. Assuming that the records sought
do not reflect the specialized skill that can be offered only by an attorney, I
do not believe that they can be withheld based on a contention that they
consist of attorney work product. Similarly, based on their content, I do
not believe that the records fall within the scope of the attorney-client
privilege. Ms. Moskowitz is not an officer of employee of the
Department. She is not the client of the Department’s attorneys, and to
the best of my knowledge, the Department officials with whom she communicated
are not attorneys or were not functioning as attorneys. For the foregoing
reasons, the records sought, in my opinion, would not be subject to the
exemptions from disclosure conferred by §§3101 or 4503 of the CPLR.
Next, with respect to the assertion of §§87(2)(b) and 89(2)(b) of the Freedom
of the Freedom of Information Law concerning unwarranted invasions of personal
privacy, I point out that several judicial decisions, both New York state and
federal, pertain to records about individuals in those capacities and indicate
that the records are not of a “personal nature.” For instance, one
involved a request for the names and addresses of mink and ranch fox farmers
from a state agency (ASPCA v. NYS Department of Agriculture and Markets,
Supreme Court, Albany County, May 10, 1989). In granting access, the
court relied in part and quoted from an opinion rendered by this office in
which it was advised that "the provisions concerning privacy in the
Freedom of Information Law are intended to be asserted only with respect to
'personal' information relating to natural persons". The court held
that:
"...the names and business addresses of individuals or
entities engaged in animal farming for profit do not constitute information of
a private nature, and this conclusion is not changed by the fact that a
person's business address may also be the address of his or her
residence. In interpreting the Federal Freedom of Information Law Act (5
USC 552), the Federal Courts have already drawn a distinction between
information of a 'private' nature which may not be disclosed, and information
of a 'business' nature which may be disclosed (see e.g., Cohen v. Environmental Protection
Agency, 575 F Supp. 425 (D.C.D.C. 1983)."
In another decision, Newsday,
Inc. v. New York State Department of Health (Supreme Court, Albany County, October
15, 1991)], data acquired by the State Department of Health concerning the
performance of open heart surgery by hospitals and individual surgeons was
requested. Although the Department provided statistics relating to
surgeons, it withheld their identities. In response to a request for an
advisory opinion, it was advised by this office, based upon the New York
Freedom of Information Law and judicial interpretations of the federal Freedom
of Information Act, that the names should be disclosed. The court agreed
and cited the opinion rendered by this office.
Like the New York Freedom of Information Law, the federal Act includes an
exception to rights of access designed to protect personal privacy.
Specifically, 5 U.S.C. 552(b)(6) states that rights conferred by the Act do not
apply to "personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy." In construing that provision, federal courts have held
that the exception:
"was intended by Congress to protect individuals from public
disclosure of 'intimate details of their lives, whether the disclosure be of
personnel files, medical files or other similar files'. Board of Trade of City of Chicago
v. Commodity Futures Trading Com'n supra,
627 F.2d at 399, quoting Rural
Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 77 (D.C. Cir.
1974); see Robles v. EOA,
484 F.2d 843, 845 (4th Cir. 1973). Although the opinion in Rural Housing stated that the exemption 'is phrased
broadly to protect individuals from a wide range of embarrassing disclosures',
498 F.2d at 77, the context makes clear the court's recognition that the
disclosures with which the statute is concerned are those involving matters of
an intimate personal nature. Because of its intimate personal nature,
information regarding 'marital status, legitimacy of children, identity of
fathers of children, medical condition, welfare payment, alcoholic consumption,
family fights, reputation, and so on' falls within the ambit of Exemption
4. Id. By contrast, as Judge Robinson stated
in the Chicago Board of Trade case, 627 F.2d at 399, the decisions
of this court have established that information connected with professional
relationships does not qualify for the exemption" [Sims v. Central
Intelligence Agency, 642 F.2d 562, 573-573 (1980)].
In Cohen, the decision
cited in ASPCA v. Department
of Agriculture and Markets, supra,
it was stated pointedly that: "The privacy exemption does not apply
to information regarding professional or business activities.." (supra,
429). Similarly in a case involving disclosure of the identities of those
whose grant proposals were rejected, it was held that:
"The adverse effect of a rejection of a grant proposal, if it
exists at all, is limited to the professional rather than personal qualities of
the applicant. The district court spoke of the possibility of injury
explicitly in terms of the applicants' 'professional reputation' and 'professional
qualifications'. 'Professional' in such a context refers to the possible
negative reflection of an applicant's performance in 'grantsmanship' - the
professional competition among research scientists for grants; it obviously is
not a reference to more serious 'professional' deficiencies such as unethical
behavior. While protection of professional reputation, even in this
strict sense, is not beyond the purview of exemption 6, it is not at its
core" [Kurzon v. Department of Health and Human Services, 649 F.2d
65, 69 (1981)].
In short, in my opinion and as indicated in the decisions cited above, the
exception concerning privacy does not apply to records identifying or
pertaining to entities or individuals in relation to their business or
professional capacities. It does not appear, therefore, that either
§87(2)(b) or §89(2)(b) may validly be asserted as a means of denying access to
the records requested by Mr.Gonzalez.
Lastly, the response referred to §87(2)(g), which may, depending on their
content, permit an agency to withhold “inter-agency” or “intra-agency”
materials. It is my understanding that Ms. Moskowitz is the CEO of a
corporation, the Success Charter Network, that operates a charter school in New
York City. That entity, in my view, is not an agency, and if that is so,
§87(2)(g) does not serve as a basis for denying access.
Section 86(3) of the Freedom of Information Law defines the term “agency” to
mean:
"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation, council, office or
other governmental entity performing a governmental or proprietary function for
the state or any one or more municipalities thereof, except the judiciary or
the state legislature."
Based on the definition of “agency”, “inter-agency” materials
consist of communications between or among entities of state and local
government in New York; “intra-agency” consist of communications within an
agency, such as transmissions between the Chancellor and employees of the
Department. Because the communications at issue involved those between or
among Ms. Moskowitz, the CEO of a corporation, which is not an agency, and
officials at the Department, they could not, in my opinion, be characterized as
either inter-agency or intra-agency materials. If that is so, §87(2)(g)
does not apply as a ground for denial.
Even when that provision is applicable, it does not authorize a blanket denial
of access. Specifically, §87(2)(g) states that an agency may 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..."
It is noted that the language quoted above contains what in effect is a double
negative. While inter-agency or intra-agency materials may be withheld,
portions of such materials consisting of statistical or factual information,
instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different
ground for denial could appropriately be asserted. Concurrently, those
portions of inter-agency or intra-agency materials that are reflective of
opinion, advice, recommendation and the like could in my view be withheld.
I note that in a case that reached the Court of Appeals, one of the contentions
was that certain reports could be withheld because they were not final and
because they related to incidents for which no final determination had been
made. The Court rejected that finding and stated that:
"...we note that one court has suggested that complaint
follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of
whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical
Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law
§87[2][g][111]). However, under a plain reading of §87(2)(g), the
exemption for intra-agency material does not apply as long as the material
falls within any one of the provision's four enumerated exceptions. Thus,
intra-agency documents that contain 'statistical or factual tabulations or
data' are subject to FOIL disclosure, whether or not embodied in a final agency
policy or determination (see, Matter
of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d
75, 83, supra; Matter of MacRae v. Dolce, 130
AD2d 577)..." [Gould et al. v. New York City Police Department, 87
NY2d 267, 276 (1996)].
The Court also dealt with the issue of what constitutes "factual
data" that must be disclosed under §87(2)(g)(i). In its
consideration of the matter, the Court found that:
"...Although the term 'factual data' is not defined by
statute, the meaning of the term can be discerned from the purpose underlying
the intra-agency exemption, which is 'to protect the deliberative process of
the government by ensuring that persons in an advisory role [will] be able to
express their opinions freely to agency decision makers' (Matter of Xerox
Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp.
v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to
safeguard internal government consultations and deliberations, the exemption
does not apply when the requested material consists of 'statistical or factual
tabulations or data' (Public Officers Law 87[2][g][I]. Factual data,
therefore, simply means objective information, in contrast to opinions, ideas,
or advice exchanged as part of the consultative or deliberative process of
government decision making (see, Matter
of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v.
Yudelson, 68 AD2d 176, 181-182)” (id., 276-277).
In sum, with the exception of portions of the records sought that may be
withheld pursuant to FERPA and, therefore, §87(2)(a), it appears that the
records must be disclosed, for none of the remaining grounds for denial of
access may justifiably be asserted.
In an effort to enhance understanding of and compliance with the Freedom of
Information Law, and to obviate the need for costly litigation, copies of this
opinion will be sent to Department officials.
I hope that I have been of assistance.
Sincerely,
Robert J. Freeman
Executive Director
RJF:jm
cc: Michael Best
Joseph A. Baranello
Juan Gonzalez
