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October 15, 1997

 

 

Ms. Gerardine C. Yakovleff
1123 W. Forest Glen
Oak Harbor, WA 98277

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. Yakovleff:

I have received your letter of September 1, which reached this office on September 9. You
have sought assistance in obtaining a report from the Division of State Police concerning the
investigation of the death of your sister in 1989.

Based upon your letter, it appears that your sister's death was the result of a suicide. The
Division of State Police has denied access and stated that it must receive "a notarized waiver,
executed by the administrator of the...estate, specifically authorizing the New York State Police to
release the report to you..." You indicated that your sister died without a will and that, following the
distribution of her estate, the duties of the executor ended.

In this regard, I offer the following comments.

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.
From my perspective, it is likely that two of the grounds for denial are pertinent to an analysis of
rights of access.

The primary issue in my view involves §87(2)(b), which authorizes an agency to withhold
records insofar as disclosure would result in "an unwarranted invasion of personal privacy."
Additionally, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy.
There are no decisions rendered under the Freedom of Information Law of which I am aware that
have dealt squarely with the privacy of the deceased. Further, having discussed the issue with
national experts, there is no clear consensus on the matter. Some contend that when a person dies,
the ability of an agency to withhold records to protect his or her privacy disappears. Others suggest
that privacy of a deceased should be protected for a certain, arbitrary period of time (i.e., two years,
five years, ten years, etc.). Perhaps the greatest degree of agreement involved the point of view that
records about a deceased are generally public, but that those portions which if disclosed would
"disgrace the memory" of the deceased may be withheld.

From my perspective, the last suggestion is most appropriate. I believe that a great deal of
information pertaining to a deceased essentially becomes innocuous by virtue of his or her death and
must be disclosed. Depending on their nature, however, disclosure of intimate details of an
individual's life might indeed disgrace his or her memory, and arguably, those kinds of details might
justifiably be withheld. In addition, depending upon the nature of the records, there may be privacy
considerations relating to the family of the deceased as well. I have no personal knowledge regarding
the content of the report in question. Nevertheless, it seems unlikely that the State Police could
justify a denial of access when records are sought by you as the sister of the deceased, particularly
since all matters involving her estate were resolved years ago. I note, too, that there is no provision
in the Freedom of Information Law that would require that a statement, notarized or otherwise, be
obtained from the administrator of an estate as a condition precedent to disclosure.

The other provision of significance is §87(2)(g). Although that provision potentially serves
as a basis for denial of access, due to its structure, it often requires substantial 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.

In sum, the blanket denial of access by the Division of State Police in my opinion is
inconsistent with the requirements of the Freedom of Information Law. In an effort to encourage the
State Police to review the matter, copies of this opinion will be forwarded to officials of that agency.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Col. James A. Fitzgerald
Lt. Laurie M. Wagner