June 11, 2019 came and at 4:36PM via email I received ,
For those that are not familiar to FOIL,
answers via email, have until the end of business day to do so. And in their typical fashion, NYS DOH with 24 minutes to spare send along their attached extension of time needed. Yes, NYS DOH needs more time.
If you have read the Posting of June 3, 2019 you know that I have shared my original request and all responses from NYS DOH, all of which request extension of time And each stated roughly the same reasoning excuse of delay.
Department of Health
ANDREW M. CUOMO HOWARD A. ZUCKER, M.D., J.D.
Governor Commissioner
June 11, 2019
VIA EMAIL Catherine Macera maceraxx@live.com
FOIL 18-10-425
SALLY DRESLIN, M.S., R.N..
Executive Deputy Commisioner
Dear Ms. Macera:
This letter is regarding your Freedom of Information Law request of October 24, 2018, which is currently being processed.
Please be advised this Office is unable to respond to your request by the date previously given to you because the records potentially responsive to your request are currently being reviewed for applicable exemptions, legal privileges and responsiveness.
We estimate that this Office will complete its process by August 14, 2019. The
Department will notify you in writing when/if the responsive materials are available for release or if the time needed to complete your request extends beyond the above date.
Should you require additional information or wish to discuss this matter further, please do not hesitate to contact me at (518) 474-8734.
Rosemarie Hewig, Esq.
Records Access Officer
RH/ysd
Empire State Plaza, Coming Tower, Albany, NY 12237 | health.ny.gov
"reviewed for applicable exemptions, legal privileges and responsiveness."
Interesting choice of words, appears to show concerns of protecting DOH and the Village.
COOG opinion:
State of New York Department of State
Committee on Open Government
One Commerce Plaza 99 Washington Ave. Albany, New York 12231 (518) 474-2518 Fax (518) 474-1927 http://www.dos.ny.gov/coog/
June 13, 2018FOIL AO 19671
Via Email
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, except as otherwise indicated.
As you are aware, I have received your correspondence concerning a request for records of the New York City Department of Parks and Recreation made pursuant to the state’s Freedom of Information Law (FOIL). You have objected to the projected delay in disclosure as indicated in the acknowledgement of the receipt of a request. Specifically, you were informed on May 30 that:
“Parks will attempt to provide with access to non-exempt records responsive to your request within twenty (20) business days from the date of this letter. However, due to the volume of FOIL requests being processed by the agency at this time, and due to staff limitations, Parks anticipates that it will require ninety (90) business days from the date of this letter.”
It is your belief that the response quoted above has become “boilerplate”, and you added:
“I’m not sure why Alessandro [Olivieri, General Counsel] continues to insist this language be included in FOIL responses which are now standard in the agency knowing full well the agency is not in compliance.”
In this regard, I offer the following comments.
First, §84 of FOIL, the “Legislative declaration”, clearly indicates the intent of that statute and provides in part that “It is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible”. Based on that direction, it has been consistently advised that there may be no supportable or valid reason for delaying disclosure of records that are clearly public and readily retrievable.
Second, aside from the direction given in the Legislative declaration, when an agency needs more than five business days from the receipt of a request, §89(3)(a) requires that the agency acknowledge the receipt of the request in writing within that time that includes “a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied…” In the rare instance in which “circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.”
In my view, the key words in the preceding sentence are “prevent” and “inability.” It is likely that many agencies receive more requests now in 2018 than in years past. If it is known that the number and nature of requests for records result in ongoing, routine or repeated delays of up to ninety business days following the receipt of requests, an agency in my view would be failing to meet its responsibilities in complying with law. The circumstance associated with the delay, staff limitations, does not involve an agency’s “inability” to respond to requests promptly, but a failure to allocate sufficient resources to enable the agency to give effect to the spirit, if not the letter, of the law. It is my understanding that the Department’s current budget is approximately five hundred million dollars. If that is so, I believe that it would be unreasonable to fail to allocate resources sufficient to realize the intent of FOIL in a manner that does not result in a routine delay for as long a time as suggested in the response to your request.
As the Court of Appeals unanimously held in 1979, “Meeting the public’s legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds” (Doolan v. BOCES, 48 NY2d 341, 347).
In an effort to encourage the Department to improve compliance with FOIL, copies of this opinion will be sent to Department officials.
I hope that I have been of assistance.
From: Robert J. Freeman, Executive Director
Cc: Alessandro G. Olivieri, General Counsel (Alessandro.Olivieri@parks.nyc.gov) Jennifer Rowley, Risk Management and Legal Records Officer (Jennifer.Rowley@parks.nyc.gov)
Re: Advisory Opinion FOIL-AO-f19671 19671
PUBLIC OFFICERS LAW, ARTICLE 6
§87. Access to agency records.
2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:
(a) are specifically exempted from disclosure by state or federal statute;
(b) if disclosed would constitute an unwarranted invasion of persona privacy under the provisions of subdivision two of section eighty-nine of this article;
(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;
(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise; (e) 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 relating to a criminal investigation; or iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;
(f) if disclosed could endanger the life or safety of any person; (g) 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; or (h) are examination questions or answers which are requested prior to the final administration of such questions;
(i) if disclosed, would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures; or * (j) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law. * NB Repealed December 1, 2024 * (k) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-b of the vehicle and traffic law. * NB Repealed December 1, 2024 * (l) are photographs, microphotographs, videotape or other recorded images produced by a bus lane photo device prepared under authority of section eleven hundred eleven-c of the vehicle and traffic law. * NB Repealed September 20, 2020 * (m) are photographs, microphotographs, videotape or other recorded images prepared under the authority of section eleven hundred eighty-b of the vehicle and traffic law. * NB Repealed August 30, 2018 * (n) are photographs, microphotographs, videotape or other recorded images prepared under the authority of section eleven hundred eighty-c of the vehicle and traffic law. * NB There are 2 par (n)'s * NB Repealed July 25, 2018 * (n) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-d of the vehicle and traffic law. * NB There are 2 par (n)'s * NB Repealed December 1, 2024 * (o) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-e of the vehicle and traffic law. * NB Repealed September 12, 2020 (p) are data or images produced by an electronic toll collection system under authority of article forty-four-C of the vehicle and traffic law and in title three of article three of the public authorities law.
COOG OPINION FOIL-AO-f18008 18008
In consideration of the foregoing, I offer the following comments.
First, pursuant to §89(3)(a), an agency cannot engage in one delay after another.
In short, following the receipt of a request, an agency has five business days to respond in some manner. If more than that time needed, the agency must acknowledge the receipt of the request within that time and offer an approximate date, not to exceed twenty additional business days, to grant access to the records in whole or in part. In the rare situation in which it is found that more than twenty additional business days are needed, the agency may do so, with an explanation of the reason for the delay and an indication of a “date certain”, a self-imposed deadline by which it will grant access to the records in whole or in part (see regulations of the Committee on Open Government, 21 NYCRR §1401.5). When the date certain is reasonable in consideration of attendant facts and circumstances, the agency would be complying with law. There is no provision that permits agencies to indicate extension after extension. Moreover, and particularly pertinent in the context of the facts that you described, if the agency fails to determine rights of access by the date certain, §89(4)(a) states that such failure constitutes a denial of access that may be appealed. The same provision specifies that an agency must determine an appeal within ten business days of the receipt of the appeal and either “provide access” to the records or “fully explain in writing” the reasons for further denial. The phrase “provide access” in my view means making the records available, not further delaying disclosure.
Second, without an indication of the nature of the records sought, a detailed response cannot be offered concerning rights of access. However, 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 (k) 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 expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY 2d 267 (1996)], stating that:
The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, directing 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.).
The exception to which you referred as “cause for alarm”, §87(2)(g), pertains to “inter-agency or intra-agency materials. Here I note that the term “agency” is defined in §86(3) of the Freedom of Information Law 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."
Therefore, an “agency”, in brief, is an entity of state or local government. Inter-agency materials would include communications between or among entities of state or local government; intra-agency materials would involve communications within an agency. Communications between ESDC or its subsidiary and entities that are not agencies, such as those that you mentioned, arts related and other organizations, would not fall within §872)(g), and that provision could not, in my view, be properly asserted as a basis for withholding those kinds of records.
The exception regarding “personal privacy”, §§87(2)(b) and 89(2)(b), involves disclosure that would constitute “an unwarranted invasion of personal privacy.” The provision has been construed to pertain to items concerning nature persons that a reasonable person of ordinary sensibilities would consider to be intimate or highly personal [see Hanig v. NYS Department of Motor Vehicles, 79 NY2d 106 (1992). That exception does not apply to items pertaining to individuals in their professional or business capacities. Consequently, the extent to which the exception concerning unwarranted invasions of personal privacy may properly be asserted may be minimal.
With respect to trade secrets, §87(2)(d) permits an agency to withhold records insofar as disclosure would “cause substantial injury” to the competitive position of a commercial enterprise. Whether several of the entities referenced in your request could be characterized as “commercial enterprises” is conjectural. Further, in a recent decision by the Court of Appeals, it was found that, to justify a denial of access under §87(2)(d), an agency must prove that disclosure would indeed cause substantial injury to an entity’s competitive position; the likelihood of harm cannot be merely theoretical [Markowitz v. Serio, 11 NY3d 43 (2008)]. In my view, the likelihood of competitive harm diminishes over the course of time. Current information concerning a commercial enterprise might be of great value to a competitor, and disclosure, therefore, might cause substantial competitive harm. However, today’s trade secret or commercially valuable information may become well known within an area of commerce or industry or perhaps irrelevant or obsolete. That may not be so with respect to other than current or recent information that you have requested.
Lastly, §87(2)(c) permits an agency to withhold records or portions of records when disclosure “would impair present or imminent contract awards...” Once a contract has been awarded, any impairment of an agency’s ability to reach an optimal agreement on behalf of the public has essentially disappeared, and the ability to assert that exception in most instances also expires. That being so, the extent to which that provision may properly be asserted with respect to encompassing a period of five years likely is minimal.
I hope that the foregoing will be of value and that I have been of assistance. Copies of this opinion will be forwarded to ESDC.
I hope that I have been of assistance.
Sincerely,
Robert J. Freeman Executive Director
RJF:jm
cc: Anita Laremont, Appeals Officer Antovk Pidedjian, Records Access Officer
FOIL-AO-f18008 18008
COOG OPINION FOIL-AO-19269
FOIL-AO-19269
January 29, 2015
TO:
FROM: Camille Jobin-Davis, Assistant Director
CC:
The staff of the Committee on Open Government is authorized to issued advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, expect as otherwise.
Dear:
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Teachers’ Retirement System of the City of New York. Specifically, you requested all correspondence to, from, or about Atlantic-Pacific Capital, The Yucaipa Companies, and/or Yucaipa American Alliance Fund II, LP, letters and other records related to disclosures; marketing materials; presentations; and copies of all other public records requests seeking any of the information being sought in this request, response letters and all documents provided to requestors. In response, TRS provided four pages of records, denying access to records of minutes of executive sessions, and records of reports prepared by outside consultants retained by TRS. On appeal, TRS clarified the bases for the denial of access to executive session minutes and consultant reports in their entirety.
It is our opinion that TRS has failed to comply with basic requirements of the Freedom of Information Law, including conducting a reasonable search for requested records, responding to requests within a reasonable time frame, and perhaps failing to provide sufficient access to records identified as responsive. In this regard, and in an effort to provide advice and counsel on these matters so as to avoid litigation, we offer the comments below.
First, 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 (l) 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 our view, the phrase quoted in the preceding sentence evidences 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, we 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, the state’s highest court, expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department (87 NY2d 267, 653 NYS2d 54 [1996]), 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 NY2d 106, 109) 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 NY2d 567, 571)” (87 NY2d at 275).
Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that certain reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). 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 NY2d at 571). 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 NY2d 131, 133; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 NY2d at 83)” (87 NY2d at 275).
In the context of your requests, TRS has engaged in a blanket denial of access in a manner which, in our view, is equally inappropriate. We are 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 TRS 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, the Freedom of Information Law requires that an applicant “reasonably describe” records of the agency. The corollary to this requirement, as specified by the highest court, is that an agency is required to make a “reasonable effort” to locate responsive records. We note that your request would encompass documents that are likely to exist, yet for which the agency has offered no response. For example, it may be that there are fee agreements with the private companies mentioned, correspondence between representatives of the companies and employees of TRS, marketing materials from the companies, and perhaps FOIL requests for such records other than the one at issue here, given the years encompassed by the request and the nature of the relationship between TRS and the firms.
In the alternative, we note that when an agency indicates that it does not maintain or cannot locate a record, as is implied here, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” It is emphasized that when a certification is requested, an agency “shall” prepare the certification; it is obliged to do so.
Third, it is our opinion that records or minutes of executive sessions are not protected from disclosure pursuant to state or federal statute. In its denial of access, TRS relies on a judicial decision from 1997 in which the court held that a tape recording of an executive session is exempt from FOIL under §87(2)(a), Wm. J. Kline & Sons v. County of Hamilton (235 AD2d 44, 663 NYS2d 339 [3rd Dept 1997]). We disagree with TRS’ reliance on this determination for multiple reasons.
Primarily, there is no state or federal law that we know of that makes a discussion in executive session “confidential.” Much like the Freedom of Information Law, the Open Meetings Law is based on a presumption that all discussions pertaining to public business and involving a quorum of members of a public body except or unless there is grounds for entry into executive session and a majority of the members vote affirmatively. The decision to enter into executive session is entirely discretionary, as is the authority of an agency to deny access to records under the exceptions to FOIL. If there is a state or federal statute that makes a record “confidential” it is typically prohibited from being disclosed except to certain narrowly defined individuals. If there is a state or federal statute that makes a discussion “confidential”, such discussion, and in fact the entire gathering of the quorum at which the discussion is held is exempt from Open Meetings Law pursuant to subsection (3) of §108, set forth in relevant part as follows:
“Exemptions. Nothing contained in this article shall be construed as extending the provisions hereof to:
1. judicial or quasi-judicial proceedings…
2. deliberations of political committees, conferences and caucuses….
3. any matter made confidential by federal or state law.”
For example, when a quorum of a public body meets with its attorney to request and receive legal advice, or discuss litigation strategy with its attorney, as the Board of Supervisors did in Wm. J. Kline & Sons, supra, such gathering is exempt from the Open Meetings Law. While there is sometimes confusion between permitted executive session discussion topics and those that are exempt, “exempt” means that the Open Meetings Law does not apply; there is no requirement to provide notice to the public, or to allow the public to witness and observe, and no requirement for a motion to enter into executive session from the public portion of a meeting.
Further, both the state’s highest court, the Court of Appeals, and federal courts in construing access statutes have determined that the characterization of records as “confidential” or “exempted from disclosure by statute” must be based on statutory language that specifically confers or requires confidentiality. As stated by the Court of Appeals:
“Although we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting disclosure claims as protection” (Capital Newspapers v. Burns, 67 NY2d 562, 567, 505 NYS2d 576 [1986]).
In like manner, in construing the equivalent exception to rights of access in the federal Act, it has been found that:
“Exemption 3 excludes from its coverage only matters that are:
specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
“5 U.S.C. § 552(b)(3) (1982) (emphasis added). Records sought to be withheld under authority of another statute thus escape the release requirements of FOIA if – and only if – that statute meets the requirements of Exemption 3, including the threshold requirement that it specifically exempt matters from disclosure.
The Supreme Court has equated ‘specifically’ with ‘explicitly.’ Baldridge v. Shapiro, 455 U.S. 345, 355, 102 S.Ct. 1103, 1109, 71 L.Ed.2d 199 (1982). ‘[O]nly explicit non-disclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption.’ Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C.Cir.1979) (emphasis added).
In other words, a statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure in the actual words of the statute” (Reporters Committee for Freedom of the Press v. U.S. Department of Justice, 816 F.2d 730, 735 [1987]; modified on other grounds, 831 F.2d 1184 [1987]; reversed on other grounds, 489 U.S. 789 [1989]; see also British Airports Authority v. C.A.B., D.C.D.C.1982, 531 F.Supp. 408; Inglesias v. Central Intelligence Agency, D.C.D.C.1981, 525 F.Supp, 547; Hunt v. Commodity Futures Trading Commission, D.C.D.C.1979, 484 F.Supp. 47; Florida Medical Ass’n, Inc. v. Department of Health, Ed. & Welfare, D.C.Fla.1979, 479 F.Supp. 1291).
In short, to be “exempted from disclosure by statute”, both state and federal courts have determined that a statute must leave no discretion to an agency: it must withhold such records.
In contrast, when records are not exempted from disclosure by a separate statute, both the Freedom of Information Law and its federal counterpart are permissive. Although an agency may withhold records in accordance with the grounds for denial appearing in §87(2), the Court of Appeals held that the agency is not obliged to do so and may choose to disclose, stating that:
“...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency’s discretion to disclose such records...if it so chooses” (Capital Newspapers, supra, 567).
The same analysis is applicable in the context of the Open Meetings Law. While that statute authorizes public bodies to conduct executive sessions in circumstances described in paragraphs (a) through (h) of §105(1), again, there is no requirement that an executive session be held even though a public body has the right to do so. The introductory language of §105(1), which prescribes a procedure that must be accomplished before an executive session may be held, clearly indicates that a public body “may” conduct an executive session only after having completed that procedure. If a motion is made to conduct an executive session for a valid reason, and the motion is not carried, the public body could either discuss the issue in public or table the matter for discussion in the future.
Please note that while it is our opinion that minutes of executive sessions are not “confidential” pursuant to state or federal law, they are, as TRS has mentioned, intra-agency records and would likely contain material that could be withheld from disclosure. Were the matter to be brought to court, the burden of proof would be on the agency, of course, to show how the records or portions thereof were protected.
Additionally, while we agree with TRS’ contention that consultant reports are intra-agency records, pursuant to the decision in Xerox Corporation v. Town of Webster (65 NY2d 131, 490 NYS2d 488 [1985]), insofaras the reports contain “statistical or factual tabulations or data,” they would be required to be released, at least in part, pursuant to §87(2)(g)(i).
Finally, although not raised in either of its responses, TRS may have records of agreements regarding management fees with the above-mentioned firms. Some have argued that disclosure of such fee agreements would cause substantial injury to the competitive position of the firms or the funds, and would therefore not be required to be disclosed pursuant to §87(2)(d); however, we note news from California regarding the California Public Employee’s Retirement Systems’ disclosure of management fees it pays to individual venture capital, hedge, and other private equity funds in which it invests. See http://firstamendmentcoalition.org/2009/06/cfac-v-calpers/.
In this regard, the courts, and particularly the Court of Appeals, have clearly confirmed that in order to meet the burden of proof in denying access to records, agencies must provide “persuasive evidence” that disclosure would cause the harm envisioned by an exception to rights of access. Specifically in relation to §87(2)(d), an agency must demonstrate that disclosure would cause actual harm, rather than a “speculative conclusion that disclosure might potentially cause harm” (Markowitz v. Serio, 11 NY3d 43, 51, 862 NYS2d 833 [2008]).
We hope this is helpful.
FOIL-AO-f19269 19269
Much like the servants of this Village...OUR Village...are being ignored, our health, our safety, not mention our financial safety, the NYS DOH and the Village servants are denying , it appears , information regarding the safety of OUR water, yet the appear to be only concerned with protecting government officials , and underlings.
I will be issuing an APPEAL because I believe the people, the tax payers, the rate payers deserve much better treatment, we have earned it. I will fight to make sure we are not FLINT MI of NY. We join together united, Review the history of this Village every term for at least 20 years have denied us a great many things, each new term covers up the previous terms, all at our expense, healthy and safety.
Officials from Flints are not free from being held responsible, we must fight for our rights as Flint citizen did and continue.
1.) Freedom of Information Law is based upon a presumption of access.
2.) “It is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible”. Based on that direction, it has been consistently advised that there may be no supportable or valid reason for delaying disclosure of records that are clearly public and readily retrievable.
3.) As the Court of Appeals unanimously held in 1979, “Meeting the public’s legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds” (Doolan v. BOCES, 48 NY2d 341, 347).
4.) First, pursuant to §89(3)(a), an agency cannot engage in one delay after another.
5.) “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 NY2d 106, 109) 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 NY2d 567, 571)” (87 NY2d at 275).
Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law.
6.) Further, both the state’s highest court, the Court of Appeals, and federal courts in construing access statutes have determined that the characterization of records as “confidential” or “exempted from disclosure by statute” must be based on statutory language that specifically confers or requires confidentiality.
In short, to be “exempted from disclosure by statute”, both state and federal courts have determined that a statute must leave no discretion to an agency: it must withhold such records.
7.) In short, to be “exempted from disclosure by statute”, both state and federal courts have determined that a statute must leave no discretion to an agency: it must withhold such records.
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