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February 24, 1998






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

I have received your letter of January 20, which reached this office on
January 29. You have raised a series of questions concerning your efforts in
obtaining records from the City of Albany. Based on your remarks, 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..."

While an agency must grant access to records, deny access or
acknowledge the receipt of a request within five business days, when such
acknowledgement 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.
The provision dealing with the right to appeal a denial of access to
records is found in §89(4)(a) of the Freedom of Information Law, which
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
of the entity, or the person therefor designated
by such 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."

Further, the regulations promulgated by the Committee on Open
Government (21 NYCRR Part 1401), which govern the procedural aspects
of the Law, state that:

"(a) The governing body of a public
corporation or the head, chief executive or
governing body of other agencies shall hear
appeals or shall designate a person or body to
hear appeals regarding denial of access to
records under the Freedom of Information
Law.

(b) Denial of access shall be in writing
stating the reason therefor and advising the
person denied access of his or her right to
appeal to the person or body established to
hear appeals, and that person or body shall be
identified by name, title, business address and
business telephone number. The records access
officer shall not be the appeals officer" (section
1401.7).

It is also noted that the state's highest court has held that a failure to
inform a person denied access to records of the right to appeal enables that
person to seek judicial review of a denial. Citing the Committee's regulations
and the Freedom of Information Law, the Court of Appeals in Barrett v.
Morgenthau held that:

"[i]nasmuch as the District Attorney failed to
advise petitioner of the availability of an
administrative appeal in the office (see, 21
NYCRR 1401.7[b]) and failed to demonstrate
in the proceeding that the procedures for such
an appeal had, in fact, even been established
(see, Public Officers Law [section] 87[1][b],
he cannot be heard to complain that petitioner
failed to exhaust his administrative remedies"
[74 NY 2d 907, 909 (1989)].

Third, 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 requests,
relevant is a recent decision by the Court of Appeals to which you alluded
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.

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: Nancy S. Anderson
Michael Hall