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Chapter 8: The Freedom of Information Law (FOIL)

All records maintained by or for units of state and local government, including those kept by or in conjunction with the duties performed by hearing officers and administrative law judges, fall within the requirements of the FOIL.

By way of background, that statute pertains to agency records, and §86(3) 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."

Section 86(4) defines "record" to include:

"any information kept, held, filed, produced, or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based on those definitions, information kept by or for any entity of state or local government, whether on paper or electronic media, would constitute an agency record that falls within the coverage of the FOIL.

FOIL in Relation to the CPLR

In a case involving a request made under the FOIL by a person involved in litigation against an agency, the Court of Appeals described the relationship between the FOIL and discovery under the CPLR, as follows: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency." [Farbman v. NYC Health and Hospitals Corporation, 62 NY2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant." [Matter of John P. v. Whalen, 54 NY2d 89, 99 (1980)]. The Court in Farbman, discussed the distinction between the use of the FOIL as opposed to the use of discovery in Article 31 of the CPLR and found that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.”

"CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL. Access to records under CPLR depends on status and need. With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action.'"

Based upon the foregoing, the pendency of litigation or an administrative proceeding does not affect either the rights of the public or a party under the FOIL.

As general matter, the FOIL 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.

The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." Although §3101(c) and (d) of the CPLR authorize confidentiality regarding, respectively, the work product of an attorney and material prepared for litigation, those kinds of records remain confidential only so long as they are not disclosed to an adversary or filed with an agency, for example.

Openness of Proceedings

Prior to considering the specifics of the FOIL, it is important to note that the Court of Appeals has 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 NY2d 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." 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 or 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 determined 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. . .." 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."

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 involving intimate personal details, 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."

In most instances, there is no statute that specifies that hearings or quasi-judicial 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 those 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 the 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 FOIL 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 AD2d 677,679 (1989)]. In the context of administrative and quasi-judicial proceedings, while records pertinent to those might ordinarily be withheld under the FOIL, once information is disclosed in a public proceeding, it becomes a matter of public record. The fact that no member of the public or news media is present at a public proceeding 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 a proceeding, and if the holding in Herald is inapplicable, the records of or pertaining to the proceeding would be available or deniable, in whole or in part, in accordance with the direction provided by the FOIL. On the other hand, if the hearings are generally open to the public, or if the holding in Herald applies, records of those proceedings must be disclosed in a manner consistent with the direction provided in that decision.

In situations in which there is no public right to attend a hearing, the FOIL would govern rights of access to records of administrative or quasi-judicial proceedings. Under those circumstances, several of the grounds for denial would be pertinent to an analysis of rights of access.

Statutory Exemptions from Disclosure

As indicated earlier, §87(2)(a) pertains to records that "are specifically exempted from disclosure by state or federal statute." In considering that provision, the Court of Appeals has indicated that it has "never held that a State statute must expressly state that it is intended to establish a FOIL exemption," [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)], but stressed that there must be "a showing of clear legislative intent to establish and preserve that confidentiality which one resisting a FOIL disclosure claims as protection." Assuming that there is legislative history suggesting an intent to ensure confidentiality, the records of a proceeding will be exempted from public disclosure. When a statute exempts a class of records from disclosure, the records are confidential in their entirety, and there is no requirement to delete personal details, for example, and provide access to the remainder of the records. [Short v. Board of Managers of Nassau County Medical Center, 57 NY2d 399(1982)].

For purposes of exempting records from disclosure under §87(2)(a), a "statute" would be an enactment of the State Legislature or Congress, and it has been held that an agency's regulations or the provisions of an administrative code or ordinance do not constitute a "statute." [See e.g., Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS2d 365, 82 AD 965, reversed 55 NY2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS2d 811, 53 AD 405 (1976); Sheehan v. City of Syracuse, 521 NYS2d 207 (1987)].

Protection of Personal Privacy

Also pertinent is §87(2)(b), which permits an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." The Court of Appeals has held that "the essence of the exemption" involves the ability of the government to protect against disclosures "that would ordinarily and reasonably be regarded as intimate, private information." [Hanig v. Department of Motor Vehicles, 79 NY2d 106, 112 (1992)].As the privacy exception relates to records pertaining to public employees, it is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others. Further, the courts have found that, as a general rule, records that are relevant to the performance of a public employee's official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy. [See e.g., Farrell v. Village Board of Trustees, 372 NYS2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD2d 309 (1977), aff'd 45 NY2d 954(1978); Sinicropi v. County of Nassau, 76 AD2d 832 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25,1981; Montes v. State, 406 NYS2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS2d 309, 138 AD2d 50 (1988); Capital Newspapers v. Burns, 67 NY2d 562(1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy. [See e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

Several of the decisions cited above [See, e.g., Farrell, Sinicropi, Geneva Printing, Scaccia and Powhida], dealt with situations in which determinations indicating the imposition of some sort of disciplinary action pertaining to particular public employees were found to be available. However, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may, according to case law, be withheld, for disclosure would result in an unwarranted invasion of personal privacy. [See e.g., Herald Company v. School District of City of Syracuse, 430 NYS2d 460 (1980)].

Determinations and Recommendations

The remaining provision of likely significance, §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..."

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 may be withheld.

In considering the foregoing, a key issue involves the function of a hearing officer. If that person has the authority to render a final and binding decision, the decision would constitute a "final agency determination" that would generally be available under §87(2)(g)(iii). If the hearing officer has only the authority to recommend, the recommendations may be withheld, at least for a time.

In a case dealing with recommendations offered by a "hearing panel" to an agency decision maker, it was found that they could be withheld. In considering the issue of disclosure, the court stated that:

"Petitioner contends that the subject documents represent the application of agency policy and rules to a specific case and that to deny disclosure would allow appellants to perpetuate their tradition of maintaining a body of 'secret agency law' in this area. Appellants, on the other hand, contend that the subject documents represent precisely the kind of predecisional information which is prepared in order to assist the decision-making process and, hence, exempt from disclosure. We agree with appellants. The hearing panel documents or report sought are not final agency determinations or policy. Rather, they are predecisional material, prepared to assist an agency decision maker (here, the Chancellor) in arriving at his decision. Only the latter has the legal authority to decide whether the rating should stand. The panel's recommendations and reasoning are not binding upon him and there is no evidence that he adopts its reasoning as his own when he adopts its conclusion...” [McAulay v. Board of Education, 61 AD2d 1048, aff'd 48 NY2d 659 (1978)].

If, however, it is clear that a hearing officer's recommendations are adopted by the decision maker, the recommendations become the final agency determination, which would be accessible. In Miller v. Hewlett-Woodmere Union Free School District #14 [Supreme Court, Nassau County, NYLJ, May 16, 1990], the court wrote:

"On the totality of circumstances surrounding the Superintendent's decision, as present in the record before the Court, the Court finds that petitioner is entitled to disclosure. It is apparent that the Superintendent unreservedly endorsed the recommendation of the Term [sic; published as is], adopting the reasoning as his own, and made his decision based on it. Assuredly, the Court must be alert to protecting 'the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers' (Matter of Sea Crest Construction Corp. v. Stubing, 82 AD2d 546, 549 [2d Dept. 1981}, but the Court bears equal responsibility to ensure that final decision makers are accountable to the public. When, as here, a concord exists as to intra-agency views, when deliberation has ceased and the consensus arrived it represents the final decision, disclosure is not only desirable but imperative for preserving the integrity of government decision making."

Presumption of Access

It is emphasized that the courts have consistently interpreted the FOIL in a manner that fosters maximum access. In a 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, supra; see also, Farbman & Sons v. New York City, supra; and Fink v. Lefkowitz, 47 NY2d 567, 571 (1979)].

Fees for Copies

When copies of records are made available under the FOIL, unless a statute authorizes a different fee, an agency may charge up to twenty-five cents per photocopy, or if records cannot be photocopied (i.e., in the case of tape recordings or computer disks), it may charge based on the actual cost of reproduction. [FOIL §87(1)(b)(iii)]. If a record of a proceeding is prepared under the State Administrative Procedure Act, §302(3) provides that "the agency is authorized to charge not more than its cost for the preparation and furnishing of such record or transcript or any part thereof, or the rate specified in the contract between the agency and a contractor if prepared by a private contractor."

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