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April 18, 1997

 

Ms. Elizabeth Manning
Ms. Laura Boyd
The Legal Aid Society
Criminal Appeals Bureau
15 Park Row
New York, NY 10038

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 Ms. Manning and Ms. Boyd:

I have received your letters, which are dated, respectively, March 27 and March 28, as well as correspondence between yourselves and the New York City Police Department.

Both letters pertain to responses to requests for records of the Department concerning cases that have resulted in convictions. The records at issue include police reports prepared in conjunction with investigations that led to arrests and convictions, police "memobook entries" concerning particular cases, and related records.

With respect to one of the cases, People v. Montalvo, you (Ms. Manning) wrote that:

"To [your] knowledge, there is no ongoing investigation in this case. There were no co-defendants, nor was the arrest part of a larger-scale police operation to apprehend members of a major drug ring. Thus, any police investigation ended with Mr. Montalvo's arrest. Also to [your] knowledge, there is no judicial proceeding concerning this case, inasmuch as Mr. Montalvo has already been convicted and sentenced."

Notwithstanding your contentions, the request was denied on the ground that "such records/information, if disclosed, would interfere with an on-going investigation or judicial proceeding."

The same basis for denial was offered with respect to a request for records involving People v. Hames, despite your (Ms. Boyd's) statement that the drug transactions leading to a conviction occurred "several years ago" and your belief that there is no ongoing investigation relating to Mr. Hames' arrest or conviction. You specified that although the conviction has been appealed, "any documents received as a result of [your] request could not be used in connection with Mr. Hames' appeal since the documents could not be part of the record on appeal", and that, therefore, "disclosure would not interfere with any on-going judicial proceeding."

You (Ms. Boyd) also requested a series of records regarding a third case, People v. Kershaw, on September 16, 1996. In a response dated March 5, you were informed that the portion of your request dealing with "complaint follow-up reports", also known as "DD5's", had not yet been determined and that you would be informed when a determination would be reached with regard to those records. In your appeal, specific reference was made to the recent decision rendered by the Court of Appeals in Gould v. New York City Police Department [87 NY2d 267 (1996)]. In responding to your appeal, although the Department found that some of the records should be disclosed, it determined that the majority of the DD5's would be withheld in their entirety, citing "sect. 87(2)(e)(iii&iv) as release of the records in question would disclose confidential sources and/or non-routine investigatory techniques." In response to your request for the patrolman's memo book, it was asserted that the Department's representative was "unable to access any records on the basis that your request is too broad in nature and does not reasonably describe a specific document."

He added that payment for copies of records would have to be made by check or money order and that "[p]ayment in cash will not be accepted." In addition, even though the reply is characterized as a "response to your appeal", it indicates in closing that you may appeal that decision to the Special Counsel to the Deputy Commissioner for Legal Matters.

From my perspective, the responses to your requests are inconsistent with the language and intent of the Freedom of the Freedom of Information Law and its judicial construction. Further, they appear to evince a refusal to follow or recognize the clear direction provided by the State's highest court less than five months ago in Gould. In this regard, I offer the following comments.

First and perhaps most importantly, 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 reiterated 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).

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 Department contended that DD5's could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception separate from those cited in response to your requests. 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 vl. 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.).

In the context of your requests, the same kinds of records have been withheld in their entirety, in these instances on the basis of different grounds for denial. Rather than citing §87(2)(g) as a basis for a blanket denial of access to the records at issue in Gould, the Department has engaged in a blanket denial citing different provisions in a manner which, in my view, is equally inappropriate. I am 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 the Department 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 specific grounds for denial cited by the Department indicate that an agency may withhold records or portions thereof that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings...

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."

If your contentions are accurate, that the cases involve investigations that terminated long ago and that they do not relate to broader or current investigations, it is difficult to envision how subparagraph (i) of §87(2)(e) could justify a denial. In short, if the investigations to which the records relate are over, disclosure could not interfere with those investigations.

Similarly, since the investigations resulted in convictions, although the cases to which they relate may be the subjects of appeals, I cannot envision how disclosure would in any way interfere with a judicial proceeding. As you are aware, appeals and appellate proceedings deal with matters of law and fact, but only those issues of law and fact contained in the record of the proceedings in the trial court. Moreover, the records submitted in trial court proceedings or used as exhibits would be available not only to defendants, but to the public generally [see Moore v. Santucci, 543 NYS2d 103, 151 AD2d 677 (1989)]. Further, while the courts and court records are not subject to the Freedom of Information Law, those records, particularly with regard to convictions of adults, would be available under other provisions of law (see e.g., Judiciary Law, §255). In short, the record on appeal is available to both parties and to the public. How disclosure at this juncture could in some way interfere with a judicial proceeding is difficult if not impossible to conceive.

The principles expressed earlier would in my view clearly be applicable with respect to the Department's assertion of §87(2)(e)(iii). In Kershaw, in citing that provision, the Department referred to the disclosure of "confidential sources." If indeed the records include names or other identifying details pertaining to confidential sources that have not otherwise been made known, those portions of the records might properly be deleted. However, it is reiterated that the presence of those details would not justify a blanket denial of access to records.

It is noted that, to qualify as a confidential source, it has been held that an individual must have been given a promise of confidentiality. In a case involving records maintained by the New York City Police Department relating to a sexual assault, it was held that:

"NYPD has failed to meet its burden to establish that the material sought is exempt from disclosure. While NYPD has invoked a number of exemptions with might justify its failure to supply the requested information, it has failed to specify with particularity the basis for its refusal...

"As to the concern for the privacy of the witnesses to the assault, NYPD has not alleged that anyone was promised confidentiality in exchange for his cooperation in the investigation so as to qualify as a 'confidential source' within the meaning of the statute (Public Officers Law §87[2][e][iii]" [Cornell University v. City of New York Police Department, 153 AD 2d 515, 517 (1989); motion for leave to appeal denied, 72 NY 2d 707 (1990).

The remaining basis for denial pertains to "non-routine investigative techniques." The leading decision concerning that provision is Fink v. Lefkowitz, which involved access to a manual prepared by a special prosecutor that investigated nursing homes, in which the Court of Appeals held that:

"The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised the nonroutine procedures by which an agency obtains its information (see Frankel v. Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution.

"To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed. Such information in the hands of the public does not impede effective law enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements (see Stokes v. Brennan, 476 F2d 699, 702; Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795; Davis, Administrative Law [1970 Supp], section 3A, p 114).

"Indicative, but not necessarily dispositive of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel (see Cox v. United States Dept. of Justice, 576 F2d 1302, 1307-1308; City of Concord v. Ambrose, 333 F Supp 958)."

In applying those criteria to specific portions of the manual, which was compiled for law enforcement purposes, the Court found that:

"Chapter V of the Special Prosecutor's Manual provides a graphic illustration of the confidential techniques used in a successful nursing home prosecution. None of those procedures are 'routine' in the sense of fingerprinting or ballistic tests (see Senate Report No. 93-1200, 93 Cong 2d Sess [1974]). Rather, they constitute detailed, specialized methods of conducting an investigation into the activities of a specialized industry in which voluntary compliance with the law has been less then exemplary.

"Disclosure of the techniques enumerated in those pages would enable an operator to tailor his activities in such a way as to significantly diminish the likelihood of a successful prosecution. The information detailed on pages 481 and 482 of the manual, on the other hand, is merely a recitation of the obvious: that auditors should pay particular attention to requests by nursing homes for Medicaid reimbursement rate increases based upon projected increase in cost. As this is simply a routine technique that would be used in any audit, there is no reason why these pages should not be disclosed" (id. at 573).

While I am unfamiliar with the records in question, it is my understanding that complaint follow-up reports are typically brief. It is possible that in some instances, they may include references to "non-routine investigative techniques and procedures." However, upon information and belief, they generally contain factual information relating to a particular event; ordinarily, they would not contain detailed descriptions of investigative techniques. From my perspective, as the Court of Appeals has suggested, to the extent that the records in question include descriptions of investigative techniques which if disclosed would enable potential lawbreakers to evade detection or endanger the lives or safety of law enforcement personnel or others [see also, Freedom of Information Law, §87(2)(f)], a denial of access would be appropriate. However, in view of the general contents of DD5's, it would likely be rare that §87(2)(e)(iii) would serve as a basis for withholding.

As you are aware, in addition to DD5's, police officers' memo books were at issue in Gould. In short, the Police Department contended that memo books, also known as "police activity logs", were not "records" that fell within the coverage of the Freedom of Information Law, but rather were the personal property of police officers. In rejecting the Department's position, the Court found that:

"Activity logs are the leather-bound books in which officers record all their work-related activities, including assignments received, tasks performed, and information relating to suspected violations of law. Significantly, the Police Department issues activity logs to all its officers, who are required to maintain these memo books in the course of their regular duties and to store the completed books in their lockers; the officers are obligated to surrender the activity logs to superiors for inspection upon request; and the contents of the logs are meticulously prescribed by departmental regulation (accord, Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557, 564-565. 475 N.Y.S.2d 263, 463 N.E.2d 604 [minutes of meetings of private insurance companies, required by regulation to be turned over to Insurance Department for inspection, are 'records' under FOIL]). Thus, although the officers generally maintain physical possession of the activity logs, they are nevertheless 'kept [or] held' by the officers for the Police Department, which places these documents squarely within the statutory definition of 'records' (see, Matter of Encore Coll. Bookstores v. Auxiliary Serv. Corp., 87 N.Y.2d 410, 417, 639, N.Y.S.2d 990, 663 N.E.2d 302). Subject to any applicable exemption and upon payment of the appropriate fee (see, Public Officers Law, § 87[1][b][iii]), the activity logs are agency records available under provisions of FOIL" (id., 278-279).

The contention offered by the Department in Gould represented a possible method of excluding the activity logs in their entirety from the disclosure requirements of the Freedom of Information Law. In this instance, a similar attempt has been made, but on a different basis, that the request does not reasonably describe the record.

By way of background, I note that the Freedom of Information Law as originally enacted in 1974, required that an applicant seek "identifiable records" (see original Freedom of Information Law, §88). That requirement resulted in a variety of problems, for members of the public frequently could not name or identify a record with particularity. The current standard, which has been in effect since 1978, requires that an applicant must "reasonably describe" the records sought. It has been held by the Court of Appeals that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its breadth and also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In the context of your request, if it can be assumed that the records relating to a case identify the police officer or officers who made an arrest or who were present at an incident and prepared a DD5, it would seem that the Department would have the ability to locate that officer and acquire the activity log for the purpose of determining rights of access to those portions pertaining to the case. If that is so, I believe that the request would "reasonably describe" the records as required by the Law.

As suggested earlier, the foregoing is not intended to indicate that the content of a police officer's activity log must be disclosed in its entirety; on the contrary, the suggestion is that the record would be available or deniable, in whole or in part, based upon its specific content.

Next, I believe that the Police Department is required to accept cash, as legal tender, as payment of fees for photocopies. There is nothing in the Freedom of Information Law that pertains specifically to the means by which fees for copies should be paid. In the only decision of which I am aware dealing with that issue, it was found that a county board of elections "failed to provide a reasonable and rationale basis to justify their policy of requiring payment of fees for copying of records in the form of only bank checks or money orders", and it was ordered that the agency be required to accept payment in United States currency as well [Reese v. Mahoney, Supreme Court, Erie County, June 28, 1984].

The same case, Reese, also considered a local law in which a "two-tiered appeals procedure" had been established. As you are aware, a response to an initial request made under the Freedom of Information Law is typically rendered by the agency's designated records access officer. I believe that the records access officer designated by the Police Department is Sgt. Louis Lombardi. When a request is denied in writing or constructively, i.e., by means of a failure to respond within an appropriate time or near the approximate date given by an agency in accordance with §89(3), the denial may be appealed pursuant to §89(4)(a). That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person thereof designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

As the appeal procedure relates to the Kershaw request, the records access officer responded to a request made on September 16. You appealed to the Department's Special Counsel, but Sgt. Lombardi wrote to you on April 2 "in response to your appeal to the Special Counsel." Nevertheless, at the end of that letter, he wrote that "[S]hould you so desire, you may appeal this decision..." to Special Counsel. If I understand the facts accurately, Special Counsel should have responded to your appeal, and you should not be required to appeal twice. I also note that the regulations promulgated by the Committee on Open Government specify that the records access officer and the appeals officer cannot be the same person [21 NYCRR, §1401.7(b)].

Lastly, one of the items of correspondence involves a request made on October 4 for records relating to the case of People v. Lampkin. As of the date of your letter to this office, you have received no response.

In this regard, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of that statute states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. Similarly, if an agency acknowledges the receipt of a request but fails to provide a "statement of the approximate date when such request will be granted or denied," the agency in my view would have failed to comply with §89(3). In a situation in which the court found that a request was constructively denied, it was stated that:

"The acknowledgement letters in this proceeding neither granted nor denied petitioner's request nor approximated a determination date. Rather, the letters were open ended as to time as they stated, 'that a period of time would be required to ascertain whether such documents do exist, and if they did, whether they qualify for inspection'.

"This court finds that respondent's actions and/or inactions placed petitioner in a 'Catch 22' position. The petitioner, relying on the respondent's representation, anticipated a determination to her request. While the petitioner may have been well advised to seek an appeal...this court finds that this petitioner should not be penalized for respondent's failure to comply with Public Officers Law §89(3), especially when petitioner was advised by respondent that a decision concerning her application would be forthcoming...

"It should also be noted that petitioner did not sit idle during this period but rather made numerous efforts to obtain a decision from respondent including the submission of a follow up letter to the Records Access Officer and submission of various requests for said records with the different offices of the Department of Transportation.

"Therefore, this court finds that respondent is estopped from asserting that this proceeding is improper due to petitioner's failure to appeal the denial of access to records within 30 days to the agency head, as provided in Public Officers Law §89(4)(a)" (Bernstein v. City of New York, Supreme Court, NYLJ, November 7, 1990).

When a request is constructively denied or denied in writing, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law, which was quoted earlier. In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to the Records Access Officer and Special Counsel.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Sgt. Louis Lombardi
Susan Petito