NY.gov Portal State Agency Listing

 

October 30, 1997

Mr. Peter W. Sluys
Managing Editor
Community Media Inc.
25 W. Central Ave., Box 93
Pearl River, NY 10965

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. Sluys:

I have received your letter of September 23 and a variety of correspondence related to it.

According to the materials, you have attempted without success to obtain records concerning
"two major series of vandalism...in Pearl River." You added that in one incident, "a young person
knocked down signs that were public property", as well as "mail boxes and other personal property
of more than 15 individual homeowners." In the other, "three young men played 'mail box
polo'...smashing mailboxes and signs with a bat." The Orangeburg Police Department has denied
access to the names or address of those "who committed acts of criminal mischief", as well as the
names and addresses of the "victims" of the events of vandalism. As I understand the matter, it is
unlikely that arrests will be made, for there may be an informal arrangement under which the youths
will pay for damages that they caused.

From my perspective, the names of those alleged to have committed the acts of vandalism
need not be disclosed. However, the locations of those acts, and perhaps other aspects of the
records, must in my view be disclosed. In this regard, I offer the following comments.

First, The Court of Appeals, the State's highest court, expressed its general view of the intent
of the Freedom of Information Law in a recent decision 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 the records sought have been withheld in their entirety
in a manner contrary to the direction provided in Gould.

Second, it appears that several of the grounds for denial are pertinent to an analysis of the
matter.

In my view, the names of the alleged perpetrators, the suspects, none of whom has apparently
been charged, may be withheld pursuant to §87(2)(b) on the ground that disclosure would constitute
"an unwarranted invasion of personal privacy." Since there has been no charge, admission or finding
of guilt, the Police Department would not be required to disclose the names of those who are the
subject of unsubstantiated and unproven allegations. Further, if they were charged, due to their ages,
I believe that records pertaining to them would be confidential. Relevant in that situation would be
§720.15 of the Criminal Procedure Law which, provides that:

"1. When an accusatory instrument against an apparently eligible
youth is filed with a court, the court, with the defendant's consent,
must order that it be filed as a sealed instrument, though only with
respect to the public.

2. When a youth is initially arraigned upon an accusatory instrument,
such arraignment and all proceedings in the action thereafter may, in
the discretion of the court and which the defendant's consent, be
conducted in private.

3. The provisions of subdivisions one and two of this section
requiring or authorizing the accusatory instrument filed against a
youth to be sealed, and the arraignment and all proceedings in the
action be conducted in private shall not apply in connection with a
pending charge of committing any felony offense as defined in the
penal law."

Based upon the foregoing, if an "apparently eligible youth" is charged with anything but a felony, the
records and proceedings pertaining to the matter are generally confidential. If names could not be
disclosed in that instance, I believe that an agency could justify a denial of access, based on
considerations of privacy, to the names of suspects who have not become the subjects of judicial
proceedings.

With respect to the names and addresses of the "victims" of the vandalism, the locations of
the vandalism would, in my opinion, be accessible. It is likely that the results of the vandalism were
visible to any passerby; there would be nothing secret about the events. The names of the victims
would also likely be available due to their connection to the addresses. While the nature of certain
crimes itself would divulge intimate personal information about a victim, i.e., a victim of a sex crime,
disclosure of the identity of a victim of vandalism would disclose nothing intimate or personal. The
act would constitute a crime involving property rather than contact with an individual.

With regard to incident reports generally, as well as similar records, the decision cited earlier,
Gould, is instructive. That decision dealt with "complaint follow up reports" prepared by police
officers, and it was held that a blanket 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, i.e.,
provisions dealing with the protection of personal privacy.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Chief Kevin Nulty
Sgt. Douglas MacDonnell
Charlotte Madigan, Town Clerk