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FOIL-AO-13469

July 17, 2002

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.

Dear

I have received your letter of June 18, as well as the materials attached to it. You have sought an advisory opinion concerning the propriety of a denial of access to records by the City of Oneonta.

By way of background, in 1985 your client was awarded custody of her son, who in 1987, according to your letter, was abducted by the father of the child. Your client knew nothing of the whereabouts of her son, "or even whether he was dead or alive", for fourteen years, until January, 2001, when "after an investigation and search by multiple law enforcement agencies, including the FBI and the City of Oneonta Police Department, the child and his father were located living in Massachusetts under fictitious names." The father and his wife were arrested and brought to Oswego County to face felony charges.

In April of that year, your client made a request to the City of Oneonta under the Freedom of Information Law for records relating to the abduction of her son, including reference to a certain report. On May 3, she was informed that a report consisting of 236 pages would made available "upon the final disposition of the criminal charges pending against Daniel and Rosemary Greene." Later that year, charges against Rosemary were dropped, and in January of this year, an Otsego County grand jury "chose not to indict Daniel Greene." On March 5, as a "follow-up" to her original request, on behalf of your client, you requested "all information including the entire file or all files" pertaining to the police investigation of the abduction and any other information relating to the report referenced above, maintained by the Oneonta City Police Department, its employees or any other person acting on behalf of the Department. On March 14, your request was denied on the ground that the records had been sealed by order of the court pursuant to §160.50 of the Criminal Procedure Law (CPL). You appealed, and it was determined that all records maintained by the City falling within the request must be considered sealed unless and until the judge who issued the order to seal the records clarifies the scope of his order.

In this regard, I am mindful that the primary function of the Committee on Open Government involves offering advice with respect to the Freedom of Information Law. However, in many instances, it is necessary to review other statutes in conjunction with the Freedom of Information Law in order offer an appropriate legal opinion. For example, in the instant situation, insofar as §160.50 of the CPL applies, the Freedom of Information Law does not; contrarily, insofar as that statute does not apply, the Freedom of Information Law would, in my view, govern rights of access. I recognize, too, that the presence or absence of a comma in statutory language, as you pointed out, can result in different conclusions. For purposes of this analysis, it will be assumed that the language of the statute itself, including the placement of punctuation, is most pertinent. That being said, I offer the following comments.

First, the Freedom of Information Law pertains to all agency records, such as those maintained by or for the City of Oneonta Police Department. For purposes of that statute, §86(4) defines the term "record" expansively to mean:

"any information kept, held, filed, produced, 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 the foregoing, documentation, in whatever form and irrespective of its authorship or source, maintained by or for the Department, would constitute a "record" that falls within the coverage of the Freedom of Information Law. I note that it has been held that police officers' memo books (often the black leather notebooks that police officers carry on their person) have been found by the Court of Appeals to constitute agency records subject to rights conferred by that statute [see Gould v. New York City Police Department, 89 NY2d 267 (1996)].

Second, 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 (i) 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 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 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 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 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Third, of critical significance is the initial ground for denial, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute, as you are aware, is §160.50 of the CPL, which provides in subdivision (1) that "[u]pon the termination of a criminal action or proceeding against a person in favor of such person", "the record of such action or proceeding shall be sealed", and notification so indicating must be given by the clerk of the court in which the action or proceeding occurred. Paragraph (c) of subdivision (1) involving the notification states that:

"all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency."

The key issue concerns the meaning of the term "official." As suggested earlier, insofar as the order to seal involves "official records and papers", those materials would be exempted from disclosure by statute, and the Freedom of Information Law would not apply. However, insofar as the records maintained by or for the Department cannot be characterized as "official", §160.50 of the CPL would not apply, and the provisions of the Freedom of Information Law would serve as the basis for determining the extent to which any such records must be disclosed.

As noted by more than one court, the language of paragraph (c) is not entirely clear. In Robinson Brog Leinwand Greene Genovese & Gluck, P.C. v. Catterson (Supreme Court, Suffolk County, NYLJ, August 13, 1997), the court stated that:

"The statute does not provide a definition of what constitutes 'an official record or paper...relating to an arrest or prosecution' and so courts have struggled to interpret this language in light of its legislative purpose to protect exonerated accused from discrimination in employment, education, and professional licensing flowing from a criminal prosecution. Some guidance is provided by two Court of Appeals cases, each involving a tape conversation of an attorney which were part of a criminal proceeding and later sought by the Grievance Committee of the Bar. In each case the tape conversation was key to the criminal proceeding and was later sought by the grievance committee which could and did result at least in the Matter of Dondi, 63 NY2d 331, 482 NYS2d 431, in the attorney being deprived of his profession, even though he had been acquitted. In each case the Court of Appeals found that the tape recording had been properly sealed and could not be unsealed (Matter of Hynes v. Karassik, supra; Matter of Dondi, supra).

"However, it is clear that the Court of Appeals agrees with the distinction of the First Department Appellate Division in the Matter of Hynes v. Karassik, 63 AD2d 597, 405 NYS2d 242 at p.243, that 'a tape recording made in the course of an investigation does not become an official record required to be sealed under the section simply because it is marked in evidence as an exhibit in the course of a criminal trial.' The Second Department Appellate Division applied this reasoning in the Matter of Anonymous, supra, finding that a tape recording of a statement suppressed during a criminal trial did not constitute the official record for purposes of CPL §160.50. The Second Department granted the motion to unseal by finding that the record was not in fact sealed and so found it unnecessary to exercise the court's inherent power to unseal.

"Generally investigative and audit reports are not records required to be sealed by the CPL §160.50 (People v. Neuman, 104 Misc2d 577)."

In the last case cited by the court, it was stated that:

"...the court would find that the various records in question here, which the court understands largely consist of investigative and audit reports prepared by the office of the Special Prosecutor during the investigation and previous prosecution of defendants Lorette Neuman and Dr. Carl Neuman, do not constitute 'official records and papers' within the meaning of CPL 160.50 (subd 1, par [c]). Here, the court would be guided by the distinction drawn in Matter of Hynes v Karassik (63 AD2d 597, aff'd 47 NY2d 659) wherein, in reversing the ruling of the trial court which had granted respondent's motion to unseal, the First Department nevertheless made available to the Bar Association Grievance Committee certain tape recordings which had been made in the course of an investigation, and which had later been received into evidence in trial. In so doing, the majority (KUPFERMAN, J., concurring and dissenting in part) made the following comment (at p 598): 'it seems appropriate to express our understanding that a tape recording made in the course of an investigation does not become an official record required to be sealed under the section simply because it is marked in evidence as an exhibit in the course of a criminal trial. On the other hand, it would seem clear that the indictment itself is such an official record.' (Emphasis added.)" (People v. Neuman, 104 Misc.2d 324, 326).

Most recently, in a case in which a defendant against whom charges had been dismissed contended that he had a right to all files maintained by the district attorney pertaining to his case, claiming that they consisted of "official records" that must be unsealed pursuant to his request pursuant to paragraph (d) of §160.50(1) of the CPL, the Court of Appeals rejected that contention. Rather, the Court determined that not all records pertaining to a criminal action or proceeding are "official" records, stating that:

"Such a conclusion is contradicted by the plain language of the statute which limits the accused's access to all official records and papers, rather than permitting free access to any and all records and papers, without limitation.

"Moreover, although CPL 160.50 specifies judgments and orders of a court as items 'included' in the category of official [89 N.Y.2d 766] records and papers, the statute is otherwise silent on the nature of such 'official' materials (see, CPL 160.50[1][c]) further supporting the conclusion that bright line rules are not wholly appropriate in this area. Indeed, such records and papers are not always subject to easy identification and may vary according to the circumstances of a particular case (Matter of Dondi, 63 N.Y.2d 331, 337, 482 N.Y.S.2d 431, 472 N.E.2d 281).

"Thus, in Matter of Dondi, we held that 'on the facts of this case' certain 'testimonial evidence' consisting of an incriminatory tape recording constituted an official record subject to CPL 160.50(1)(c) (id., at 337-338, 482 N.Y.S.2d 431, 472 N.E.2d 281). However, in Matter of Hynes v. Karassik, 47 N.Y.2d 659, 661-662, 419 N.Y.S.2d 942, 393 N.E.2d 1015, we affirmed the Appellate Division's determination that 'two tape recordings introduced into evidence at the criminal trial were not within the definition of 'official records and papers' protected by the sealing statute [680 N.E.2d 605] *232 (CPL 160.50, subd 1, par [c]).' Consequently, while some recordings may qualify as an official record under certain circumstances, not all tape recordings will qualify as an official record in every case" [Harper v. Angiolillo, 89 NY2d 761, 765-766 (1997)]

In consideration of the decisions referenced above, it appears that "official records" and the capacity to seal involve those records "relating to the arrest or prosecution", and do not necessarily include investigative materials. If that is so, it would appear that some if not many of the records sought would not be subject to sealing requirements and would be subject to the Freedom of Information Law. The factual circumstances that you presented would suggest that investigative and other records may have been prepared years before the arrest and perhaps on a somewhat continual basis, and that those records might never have been used in determining whether to prosecute, nor might they have been pertinent to or used in relation to grand jury proceedings. Many of those records would appear to fall beyond several courts' construction of "official" records and, therefore, within the scope of the Freedom of Information Law.

To the extent that the Freedom of Information Law is applicable, several grounds for denial might be relevant in determining the extent to which they must be disclosed or, conversely, may be withheld.

Records prepared by Department personnel would likely fall within §87(2)(g), which enables an agency to 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..."

It is noted that 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 could in my view be withheld.

In Gould, supra, the Court of Appeals focused on that provision, and the decision states that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][111]). However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)...

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182).

"Against this backdrop, we conclude that the complaint follow-up reports contain substantial factual information available pursuant to the provisions of FOIL. Sections of the report are devoted to such purely factual data as: the names, addresses, and physical descriptions of crime victims, witnesses, and perpetrators; a checklist that indicates whether the victims and witnesses have been interviewed and shown photos, whether crime scenes have been photographed and dusted for fingerprints, and whether neighborhood residents have been canvassed for information; and a blank space denominated 'details' in which the officer records the particulars of any action taken in connection with the investigation.

"However, the Police Department argues that any witness statements contained in the reports, in particular, are not 'factual' because there is no assurance of the statements' accuracy and reliability. We decline to read such a reliability requirement into the phrase 'factual data', as the dissent would have us do, and conclude that a witness statement constitutes factual data insofar as it embodies a factual account of the witness's observations. Such a statement, moreover, is far removed from the type of internal government exchange sought to be protected by the intra-agency exemption (see, Matter of Ingram v. Axelrod, 90 AD2d 568, 569 [ambulance records, list of interviews, and reports of interviews available under FOIL as 'factual data']). By contrast, any impressions, recommendations, or opinions recorded in the complaint follow-up report would not constitute factual data and would be exempt from disclosure. The holding herein is only that these reports are not categorically exempt as intra-agency material. 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., 276-277).

Based on the foregoing, neither the New York City Police Department nor an office of a district attorney could claim that certain reports could be withheld in their entirety on the ground that they constitute intra-agency materials. However, the Court was careful to point out that other grounds for denial might apply.

For instance, of potential significance is §87(2)(b) of the Freedom of Information Law, which permits an agency to withhold records or portions thereof when disclosure would constitute "an unwarranted invasion of personal privacy". That provision might be applicable relative to the deletion of identifying details in a variety of situations, i.e., where a record identifies a confidential source or a witness, for example.

Often the most relevant provision concerning access to records maintained by law enforcement agencies is §87(2)(e), which permits an agency to withhold records that:

"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."

In my view, the foregoing indicates that records compiled for law enforcement purposes can only be withheld to the extent that disclosure would result in the harmful effects described in sub- paragraphs (i) through (iv) of §87(2)(e). At this juncture, since the criminal case is closed, it does not appear that disclosure would interfere in any way with an investigation or judicial proceeding.

Another possible ground for denial is §87(2)(f), which permits withholding to the extent that disclosure "would endanger the life or safety of any person". The capacity to withhold on that basis is dependent upon the facts and circumstances concerning an event.

In sum, while some of the records sought may fall within the coverage of §160.50 of the CPL and be exempt from disclosure, it appears, based on the judicial interpretation of that statute, that the remainder of the records would be subject to rights of access conferred by the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. James Koury
David S. Merzig