Chapter 8: The Freedom of Information Law
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"
"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.
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.
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
"[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.
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
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
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)].
The remaining provision of likely significance,
§87(2)(g), states that an agency may withhold records
"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;
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
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
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
"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)].
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."