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Legal Opinions, Software, and a Manual for the Software Properly Withheld

The First Department determined the respondent NYS Division of Human Rights properly withheld certain materials requested pursuant to the Freedom of Information Law (FOIL).  Legal opinions were exempt as “intra-agency materials” and were also exempt because the person who was the subject of the documents did not consent to the release.  In addition, software which was requested was not “information” within the meaning of FOIL:

Respondent properly withheld the four legal opinions requested by petitioner pursuant to the “intra-agency materials” exemption (see Public Officers Law § 89[2][g]), since they are essentially “predecisional memoranda, prepared to assist the agency in its decision-making process and . . . are not final agency determinations or policy” … . Contrary to petitioner’s argument, the opinions do not fall under the exceptions to this exemption for “statistical or factual tabulations or data” (Public Officers Law § 89[2][g][i]) or “instructions to staff that affect the public” (Public Officers Law § 89[2][g][ii]…).

Moreover, three of the four opinions are “specifically exempted from disclosure by state . . . statute” (Public Officers Law § 87[2][a]…) pursuant to Executive Law § 297(8), which prohibits respondent from making public information contained in reports obtained by it with respect to a particular person without his or her consent. …

Respondent properly denied the request for its “Case Management System Legal Resources Notebook,” which does not constitute a record within the meaning of FOIL, since it is not “information” (Public Officers Law § 86[4]) but rather a software application providing the means of accessing information in its electronic file system. It also properly withheld the user’s manual for that application, since its disclosure “would jeopardize [respondent’s] capacity . . . to guarantee the security of its . . . electronic information systems” (Public Officers Law § 87[2][i]).  Matter of Miller v New York State Div of Human Rights, 2014 NY Slip Op 07742, 1st Dept 11-13-14

 

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