NY.gov Portal State Agency Listing

 

May 27, 1997

 

 

 

Ms. Carolyn Schurr
General Counsel
Newsday
235 Pinelawn Road
Melville, NY 11747-4250

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. Schurr:

I have received your correspondence of May 13 as well as
related materials pertaining to a request made by Newsday for a
document maintained by the New York City Police Department commonly
known as the "homicide ledger." The ledger consists of a
"compilation of the names, ages, and addresses and places of death
of the homicide victims in New York City for 1995 and 1996."

Although the documentation at issue has been granted in the
past, the Police Department's Records Access Officer denied access
on the basis of "section 87(2)(g)(iii) as such records are inter-agency or intra-agency materials which are not final agency policy
or determination." He also indicated that the documentation could
be withheld under §87(2)(b) on the ground that disclosure would
constitute "an unwarranted invasion of personal privacy."

From my perspective, the denial of the request is
inappropriate. In this regard, I offer the following comments.

First, it appears that the denial as it refers to §87(2)(g)
evidences a failure on the part of the Police Department to
recognize or understand a decision rendered by the Court of Appeals
in November concerning Police Department records. As you are
aware, due to its structure, §87(2)(g), one of the grounds for
denial, often requires disclosure. That provision 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.

One of the contentions offered by New York City in the recent
decision was that certain reports could be withheld because they
are not final and because they relate to incidents for which no
final determination had been made. The Court of Appeals rejected
that finding and stated 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)..." [Gould et al. v. New York City
Police Department, 87 NY2d 267, 276 (1996)].

The Court also dealt with the issue of what constitutes
"factual data" that must be disclosed under §87(2)(g)(i). In its
consideration of the matter, the Court found that:

"...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" (id., 276-277)

The information sought clearly consists of factual data; that some
of it may relate to investigations that have not yet been closed is
irrelevant. As such, in my view, §87(2)(g) would not serve as a
basis for a denial of access.

Lastly, I do not believe that disclosure of the minimal
details regarding homicide victims could be characterized as an
unwarranted invasion of personal privacy. As you pointed out in
your appeal to Susan Petito, Special Counsel, case law indicates
that the language of the privacy exception is intended to involve
personal details pertaining to the living [Tri-State Publishing
Company v. City of Port Jervis, 138 Misc. 2d 147, 523 NYS 2d 954,
Supreme Court, Orange County (1988)]. In this instance, all of
those identified are deceased. Notwithstanding that holding, the
fact of one's death by means of a homicide would not in my view
represent the kind of personal or intimate detail that could
justifiably be withheld as an unwarranted invasion of personal
privacy. Additionally, it is likely that information equivalent to
that sought is contained in a variety of records maintained and
disclosed by the Police Department.

In sum, I do not believe that the Department has the authority
to withhold the documentation sought by Newsday. In an effort to
enhance compliance with and understanding of the Freedom of
Information Law, and to attempt to resolve the matter without
resort to litigation, copies of this response will be forwarded to
officials of the Police Department.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Susan Petito
Sgt. Louis Lombardi