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FOIL-AO-13088

December 26, 2001

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, except as otherwise indicated.

Dear

As you are aware, I have received your letter, as well as a variety of correspondence pertaining to your request for records kept by the Nassau County Police Department concerning the arrest, investigation and guilty pleas of three named individuals. Two of the three pled guilty to charges of sexual abuse; the third paid a fine to resolve a charge of attempted assault on a police officer. With the exception of photographs of the two convicted of sexual abuse, the request was denied in its entirety pursuant to §50-b of the Civil Rights Law.

Subdivision (1) of §50-b states that:

"The identity of any victim of a sex offense, as defined in article one hundred thirty or §255.25 of the penal law, shall be confidential. No report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim except as provided in subdivision two of this section."

The initial ground for denial in the Freedom of Information Law, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." Section 50-b exempts records identifiable to a victim of a sex offense from disclosure, and consequently, the Freedom of Information Law in my view provides no rights of access to those records.

As you are likely aware, the Freedom of Information Law generally requires agencies to review records to determine which portions, if any, fall within one or more of the grounds for a denial of access appearing in §87(2). Following such review, agencies are required to make appropriate redactions and disclose the remainder of the records. However, the Court of Appeals held nearly twenty years ago that:

"...[t]he statutory authority to delete identifying details as a means to remove records from what would otherwise be an exception to disclosure mandated by the Freedom of Information Law extends only to records whose disclosure without deletion would constitute an unwarranted invasion of personal privacy, and does not extend to records excepted in consequence of specific exemption from disclosure by State or Federal statute" [Short v. Board of Managers, 57 NY2d 399, 401 (1982)].

Based on the specific language of §50-b of the Civil Rights Law, in a manner consistent with Short, the Court of Appeals in Fappiano v. New York City Police Department [95 NY2d 738 (2001)] held that any record maintained by a public officer or employee that tends to identify the victim of a sex offense must be withheld in its entirety, except as provided in subdivision (2) of that statute. Similarly, in Karlin v. McMahon, the Court found that "the police are not obligated to provide the records even though redaction might remove all details which 'tend to identify the victim'" [96 NY2d 842 (2001)].

In response your appeal sustaining the initial denial of access, the Department's appeals officer wrote that he "had the investigative files in this matter reviewed and...determined that virtually all of the documents and evidence in these files, with the exception of the arrest photographs, identifies victims of sex offenses, hence this Department is prohibited from disclosing such records..." Further, since you found it "hard to believe that all documents in the Department's files regarding this matter would invade the privacy rights of a victim of a sex crime", he added that "the arrest reports prepared in 1987 and 1988 specifically name and identify victims, a procedure or process not currently employed in those types of cases."

The Court of Appeals appears to have recognized the potential breadth of the exception to rights of access and imposed a substantial responsibility upon agencies to demonstrate that requested records include information that would tend to identify a victim of a sex offense. In Fappiano, the court stressed that:

"Notwithstanding our holding, we conclude that respondent police departments did not meet their burden of showing that the statutory privilege of Civil Rights Law §50-b applies to all of the records that petitioners seek (Matter of Gould v. New York City Police Dept., 89 N.Y. 2d 808, supra). Although Civil Rights Law §50-b shields documents containing information that tends to identify the victim of a sex crime, the police departments here made no attempt to show that each requested document contained identifying information. While Civil Rights Law §50-c mandates caution by imposing civil liability upon governmental entities that disclose the identity of a sex crime victim in violation of section 50-b, that fact does not justify a blanket denial of a request for any documents relating to a sex crime. If a requested document does not contain information that tends to identify the victim of a sex crime, and the FOIL request is otherwise valid, the document must be disclosed. In those cases where there is as legitimate dispute as to whether the information contained in any given document tends to identify the victim, the police still bear the burden of making a particularized showing as to why it should not be disclosed (supra, 748)."

In consideration of the foregoing, although the Freedom of Information Law ordinarily does not require that an agency do so, in the interest of avoiding litigation involving the in camera review of records by a court, it will be suggested by sending a copy of this response to the Department, that it prepare an inventory of all records falling within the scope of your request. I note that the request was expansive, for it included "arrest reports, mug shots and any other photographs in the files, police reports, investigator's reports, investigator's notes, evidence seized and anything else in the files" pertaining to the arrest of the three individuals. The inventory should briefly describe each and every record sought, and when it is clearly so, an assertion or certification that a record would, if disclosed, identify or tend to identify a victim. If upon the preparation of an inventory and a review of every record falling within the ambit of your request, it is found that certain of those records do not include information identifiable to a victim of a sex offense, the Department would be required to disclose the records to you in accordance with the Freedom of Information Law.

If the Department does not agree to prepare the kind of inventory and engage in the review process described above, it would appear that the only remaining avenue of review would involve the initiation of a proceeding under Article 78 of the CPLR.

I hope that I have been of assistance.

Sincerely,

Robert J, Freeman
Executive Director

RJF:tt

cc: John G. Kennedy