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January 5, 1998


Mr. David Steinberg
Chief Assistant Public Defender
22 Market Street
Poughkeepsie, NY 12601

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. Steinberg:

I have received your letter of December 3, as well as the
correspondence relating to it.

You have sought an advisory opinion concerning the denial of access
by the Division of State Police to the "NYSP Field Manual", "any and all
directives addressing procedures to be followed for searches, search warrants
and arrests" insofar as those items are not included in the Manual, and a "list
of documents" in possession of the Division that are "discoverable under the
Freedom of Information Law." The request was made on July 21, its receipt
was acknowledged on August 1, at which time it was estimated that the
request would be granted or denied "in approximately 30 business days." On
September 25, the first two aspects of your request were denied in their
entirety on the ground that the records sought were compiled for law
enforcement purposes and disclosure would interfere with law enforcement
investigations, because they are "also intra-agency materials for which an
exemption from disclosure is provided", and on the ground that "disclosure
would endanger the life and safety of others." With respect to the third
element of your request, you were informed that no records responsive to
your request could be found. You appealed the denial on October 6, and in
a determination of October 20, the denial was affirmed for the reasons
previously expressed.

From my perspective, while some aspects of the records might
justifiably have been withheld, it is likely in my view that the blanket denial of
access was inappropriate and that others must be disclosed. 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 cited 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). 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, the Manual and perhaps other records
have been withheld in their entirety. Rather than citing only §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 alluding to two other 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).

There is no question but that the records sought constitute intra-agency materials that fall within the scope of §87(2)(g). However, due to its
structure, that provision frequently requires substantial disclosure.
Specifically, §87(2)(g) states that an agency may 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
basis for denial is applicable. 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. It would appear that the records
sought would consist of instructions to staff that affect the public or an
agency's policy. Therefore, I believe that they would be available, unless a
different basis for denial could be asserted.
A second provision of potential significance 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
of 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."

The denials appear to allude subparagraph (i), for they contend that
disclosure would interfere with investigations. Again, a blanket denial of
access is in my opinion inconsistent with the direction provided by the State's
highest court. While I am not familiar with the contents of the records at
issue, it seems unlikely that every aspect of the records would, if disclosed,
interfere with an investigation or that the Division could meet the standard of
articulating a "particularized and specific justification" for such a broad denial.
I would conjecture that many aspects of the records sought are routine and
that the effects of disclosure would not be damaging.

Perhaps more relevant would be §87(2)(e)(iv). The leading decision
concerning that provision 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).

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 contained in the records sought 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.

The other provision to which the Division alluded as a basis for denial
is §87(2)(f). Again, that provision permits an agency to withhold records
insofar as disclosure "would endanger the life or safety of any person." As
suggested with respect to the other exceptions, I believe that the Division is
required to review the documentation at issue to determine which portions fall
within this or the other exceptions.

Second, with respect to the portion of your request involving a list of
available records, it appears that you were referring to a "subject matter list."
With certain exceptions, an agency is not required to create or prepare a
record to comply with the Freedom of Information Law [see §89(3)]. An
exception to that rule relates to a list that categorizes the records maintained
by an agency. Section 87(3) of the Freedom of Information Law states in
relevant part that:

"Each agency shall maintain...

c. A reasonably detailed current list by subject
matter, of all records in the possession of the
agency, whether or not available under this
article."

The "subject matter list" required to be maintained under §87(3)(c) is not, in
my opinion, required to identify each and every record of an agency; rather I
believe that it must refer, by category and in reasonable detail, to the kinds of
records maintained by an agency, I emphasize that §87(3)(c) does not require
that an agency ascertain which among its records must be made available or
may be withheld. Again, the Law states that the subject matter list must refer,
in reasonable detail, to the kinds of records maintained by an agency, whether
or not they are available.

It has been suggested that the records retention and disposal schedules
developed by the State Archives and Records Administration at the State
Education Department may be used as a substitute for the subject matter list.

Lastly, since you "protest[ed] the sixty-six (66) day delay in
responding to the FOIL application which grossly exceeds the 'five business
days' statutory time", I note the Freedom of Information Law provides
direction concerning the time and manner in which agencies must respond to
requests. Specifically, §89(3) 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 acknowledgment
of the receipt of such request and a statement
of the approximate date when such request
will be granted or denied..."

While an agency must grant access to records, deny access or
acknowledge the receipt of a request within five business days, when such
acknowledgment is given, there is no precise time period within which an
agency must grant or deny access to records. The time needed to do so may
be dependent upon the volume of a request, the possibility that other requests
have been made, the necessity to conduct legal research, the search and
retrieval techniques used to locate the records and the like. In short, when an
agency acknowledges the receipt of a request because more than five business
days may be needed to grant or deny a request, so long as it provides an
approximate date indicating when the request will be granted or denied, and
that date is reasonable in view of the attendant circumstances, I believe that
the agency would be acting in compliance with law.

Notwithstanding the foregoing, in my view, every law must be
implemented in a manner that gives reasonable effect to its intent, and I point
out that in its statement of legislative intent, §84 of the Freedom of
Information Law states that "it is incumbent upon the state and its localities
to extend public accountability wherever and whenever feasible." Therefore,
if records are clearly available to the public under the Freedom of Information
Law, or if they are readily retrievable, there may be no basis for a lengthy
delay in disclosure. As the Court of Appeals has asserted:

"...the successful implementation of the
policies motivating the enactment of the
Freedom of Information Law centers on goals
as broad as the achievement of a more
informed electorate and a more responsible
and responsive officialdom. By their very
nature such objectives cannot hope to be
attained unless the measures taken to bring
them about permeate the body politic to a
point where they become the rule rather than
the exception. The phrase 'public
accountability wherever and whenever feasible'
therefore merely punctuates with explicitness
what in any event is implicit" [Westchester
News v. Kimball, 50 NY2d 575, 579 (1980)].

If a request is voluminous and a significant amount of time is needed
to locate records and review them to determine rights of access, a substantial
time to determine rights of access might be reasonable. On the other hand, if
a record can be found easily, there would appear to be no rational basis for
delaying disclosure for a lengthy period. In a case in which it was found that
an agency's "actions demonstrate an utter disregard for compliance set by
FOIL", it was held that "[t]he records finally produced were not so
voluminous as to justify any extension of time, much less an extension beyond
that allowed by statute, or no response to appeals at all" (Inner City
Press/Community on the Move, Inc. v. New York City Department of
Housing Preservation and Development, Supreme Court, New York County,
November 9, 1993).

In an effort to attempt to avoid litigation, copies of this opinion will
be forwarded to Division officials.

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

RJF:tt

cc: Col. James A. Fitzgerald, Chief Inspector
Lt. Col. Bruce M. Arnold, Assistant Deputy Superintendent