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FOIL-AO-10229

July 25, 1997

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, unless otherwise indicated.

Dear

As you are aware, I have received your letter of July 1 in which you sought an advisory opinion concerning "the refusal" by the Division of State Police to disclose records relating to "the bombing incident at the Clifton Park home of Jude and Mary Reardon on Christmas Eve, 1996", and those pertaining to "the investigation of the late Christopher Gilson in connection with this incident." In addition, you requested records "relating to the finding suicide" in Gilson's death.

In response to the request, a "redacted copy of the Investigation Report" was disclosed, but all other documentation was withheld. Since the receipt of your letter, I have also received the Division's determination of your appeal. In sustaining the initial denial, Chief Inspector James A. Fitzgerald wrote that:

"The records you seek were compiled for law enforcement purposes and which if disclosed, would reveal non-routine criminal investigative techniques or procedures. Additionally, disclosure of other portions of the investigative report would endanger the life or safety of those concerned and/or redactions were made to prevent an unwarranted invasion of personal privacy of those concerned."

As I understand the matter, which received substantial publicity, the investigation of incident was lengthy and detailed. It appears, however, that the Division of State Police disclosed only one report, and that was made available only after having been redacted; all other records falling within the scope of your request were withheld in their entirety. If that is so, the Division denied access to numerous records in blanket fashion in a manner inconsistent with the Freedom of Information Law and its judicial interpretation. 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 expressed its general view of the intent of the Freedom of Information Law in a recent decision to which you referred in your appeal, Gould v. New York City Police Department [87 NY 2d 267 (1996)], 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 agency contended that complaint follow up reports, also known as "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 request. 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). The Court then 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, directing 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 v. 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 request, it appears that a variety of records have been withheld in their entirety. Rather than citing §87(2)(g) as a basis for a blanket denial of access to the records at issue as in Gould, the Division 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 Division 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 referenced 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...reveal criminal investigative techniques or procedures, except routine techniques and procedures."

The leading decision concerning the provision quoted above 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).

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. I would conjecture, however, that not all of the investigative techniques or procedures employed in relation to the incident and the ensuing investigation could be characterized as "non-routine", and that it is unlikely that disclosure of each aspect of the records would result in the harmful effects of disclosure described above.

Another provision to which the Division alluded as a basis for denial is §87(2)(f). As inferred earlier, that provision permits an agency to withhold records insofar as disclosure "would endanger the life or safety of any person." It was advised above that if, for example, disclosure of non-routine criminal investigative techniques or procedures would endanger the life or safety of law enforcement personnel or others, §87(2)(f) might justifiably be asserted. Nevertheless, in the Division's determination to deny access, it was stated that disclosure "would endanger the life or safety of those concerned." Based upon news media accounts of the matter, it appears to have been established that Gilson was the perpetrator. Since he committed suicide, it is difficult to envision how disclosure, at this juncture, would endanger the life or safety "of those concerned."

The remaining provision upon which the Division relied is §87(2)(b), which permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Again, a blanket denial would in my opinion be inappropriate. While it is likely that names or other identifying details regarding those questioned during or involved in the investigation might justifiably be withheld, identifying details could be deleted, and the remainder of the records disclosed.

In sum, in view of the nature of the incident and the volume of the records that were likely produced that fall within the scope of your request, I believe that the wholesale denial of access by the Division is inconsistent with the Freedom of Information Law and its judicial interpretation. In an effort to encourage the Division of State Police to review the records and to avoid the necessity of engaging in litigation, a copy of this opinion will be forwarded to the Division of State Police.

Lastly, since an aspect of your request involved records relating to Gilson's suicide, I note that autopsy reports and related records prepared by a coroner or medical examiner are beyond the scope of rights conferred by the Freedom of Information Law. Under §677 of the County Law, those kinds of records would be exempt from disclosure and would be available to the public only by means of a court order authorizing disclosure.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Colonel James A. Fitzgerald
Lieutenant Colonel Bruce M. Arnold