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March 6, 1998

 

Ms. Jeanmarie Klaus
Secretary/Treasurer
Yorktown Heights Fire District
P.O. Box 81
Yorktown Heights, NY 10598

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. Klaus:

I have received your letter of February 6, in which you sought guidance concerning
access to incident reports prepared by the Yorktown Heights Fire District that contain
personal information.

In this regard, I offer the following comments.

First, 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 º87(2)(a) through (i) of the Law. Further, the introductory language of
º87(2) refers to the authority to withhold "records or portions thereof" that fall within the
scope of the grounds for denial that follow. The phrase quoted in the preceding sentence
indicates that a single record or report may contain both accessible and deniable
information. Moreover, that phrase in my opinion imposes an obligation upon agencies to
review requested records in their entirety to determine which portions, if any, may
justifiably be withheld.

Second, of primary relevance is º87(2)(b) of the Freedom of Information Law, which
states that an agency may withhold records or portions thereof that:

"if disclosed would constitute an unwarranted invasion of personal
privacy under the provisions of subdivision two of section eighty-nine
of this article...."

In addition, º89(2)(b) lists a series of examples of unwarranted invasions of personal
privacy, the first two of which pertain to:

"i. disclosure of employment, medical or credit histories or personal
references or applicants for employment;

ii. disclosure of items involving the medical or personal records of a
client or patient in a medical facility..."

From my perspective, a record of a medical emergency call consists in great measure of
what might be characterized as a medical record or history relating to the person needing
care or service (see Hanig v. NYS Department of Motor Vehicles, 79 NY 2d 106 (1992)].

In my opinion, portions of records identifying those to whom medical services were
rendered, their ages, and descriptions of their medical problems or conditions could be
withheld on the ground that disclosure would constitute an unwarranted invasion of
personal privacy, for disclosure of a name coupled with those details in my view
represents a personal and somewhat intimate event in the individual's life. However, I
believe that other aspects of the records, such as the locations of calls or addresses, should
be disclosed. In my view, an emergency call, particularly when sirens or flashing lights are
used, is an event of a public nature. When a fire truck or ambulance travels to its
destination, that destination is or can be known to those in the vicinity of the event. In
essence, I believe that event is of a public nature and that disclosure of an address or a
brief description of an event would not likely constitute an unwarranted invasion of
personal privacy. Nevertheless, the personally identifiable details described earlier could in
my view be withheld.

Also potentially relevant may be º87(2)(e), which enables 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."

On rare occasions, as in the case of arson, it is possible that portions of the reports might
be withheld, for example, on the ground that disclosure would interfere with an
investigation.

Lastly, when a record is available in its entirely under the Freedom of Information Law,
any person has the right to inspect the record at no charge. However, as suggested
earlier, there are often situations in which some aspects of a record, but not the entire
record, may properly be withheld in accordance with the ground for denial appearing in
º87(2). In that event, I do not believe that an applicant would have the right to inspect the
record. In order to obtain the accessible information, upon payment of the established fee,
I believe that the agency would be obliged to disclose those portions of the records after
having made appropriate deletions from a copy of the record.

When accessible and deniable information appears on the same page, preparing a
redacted copy and charging the established fee, in my opinion, is justifiable. Further, it
has been held that an agency may seek payment for copies in advance of preparing the
copies (see Sambucci v. McGuire, Sup. Ct., New York Cty., Nov. 4, 1982).

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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