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June 24, 1997

 

 

 

Mr. Richard Brooks
93-A-0142
354 Hunter Street
Ossining, NY 10652

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 Mr. Brooks:

I have received your letter of May 27 in which you sought
assistance in obtaining records pertaining to your case from the
New York City Police Department. Attached to your letter is a
request dated November 19 that has not yet been answered.

In this regard, I offer the following comments.

First, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests. Specifically, §89(3) of the Freedom of Information Law
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. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. 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, 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."

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)].

For your information, the person designated by the Department
to determine appeals is Susan Petito, Special Counsel.

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. Since I am
unaware of the contents of all of the records in which you are
interested, or the effects of their disclosure, I cannot offer
specific guidance. Nevertheless, the following paragraphs will
review the provisions that may be significant in determining rights
of access to the records in question.

In considering the records falling within the scope of your
request, relevant is a recent decision by the Court of Appeals
concerning "complaint follow up reports" prepared by police
officers and police officers' memo books in which it was held that
a denial of access based on their characterization as intra-agency
materials would be inappropriate.

The provision at issue, §87(2)(g) of the Freedom of
Information Law, 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 its analysis of the matter, 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" [Gould, Scott and DeFelice v. New York City Police Department,89 NY2d 267. 276-277 (1996); emphasis added by the Court].

Based on the foregoing, the agency could not claim that the
complaint reports can 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
in consideration of those records, as well as others that you
requested.

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).

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.

Also relevant is the first ground for denial, §87(2)(a), which
pertains to records that "are specifically exempted from disclosure
by state or federal statute". One such statute, §190.25(4) of the
Criminal Procedure Law deals with grand jury proceedings and
provides in relevant part that:

"Grand jury proceedings are secret, and no
grand juror, or other person specified in
subdivision three of this section or section
215.70 of the penal law, may, except in the
lawful discharge of his duties or upon written
order of the court, disclose the nature or
substance of any grand jury testimony,
evidence, or any decision, result or other
matter attending a grand jury proceeding."

As such, grand jury related records would be outside the scope of
rights conferred by the Freedom of Information Law. Any disclosure
of those records would be based upon a court order or perhaps a
vehicle authorizing or requiring disclosure that is separate and
distinct from the Freedom of Information Law.

Lastly, in a decision concerning a request for records
maintained by the office of a district attorney that would
ordinarily be exempted from disclosure under the Freedom of
Information Law, it was held that "once the statements have been
used in open court, they have lost their cloak of confidentiality
and are available for inspection by a member of the public" [see
Moore v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon that
decision, it appears that records introduced into evidence or
disclosed during a public judicial proceeding should be available.
However, in the same decision, it was also found that:

"...if the petitioner or his attorney
previously received a copy of the agency
record pursuant to an alternative discovery
device and currently possesses the copy, a
court may uphold an agency's denial of the
petitioner's request under the FOIL for a
duplicate copy as academic. However, the
burden of proof rests with the agency to
demonstrate that the petitioner's specific
requests are moot. The respondent's burden
would be satisfied upon proof that a copy of
the requested record was previously furnished
to the petitioner or his counsel in the
absence of any allegation, in evidentiary
form, that the copy was no longer in
existence. In the event the petitioner's
request for a copy of a specific record is not
moot, the agency must furnish another copy
upon payment of the appropriate fee...unless
the requested record falls squarely within the
ambit of 1 of the 8 statutory exemptions"
(id., 678).

The Court in Moore also specified that an agency "is not required
to make available for inspection or copying any suppression hearing
or trial transcripts of a witness' testimony in its possession,
because the transcripts are court records, not agency records" (id.
at 680).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Susan Petito, Special Counsel