NY.gov Portal State Agency Listing

 


April 17, 1998
Mr. Jerry Ison
95-A-5811
Fishkill Correctional Facility
Box 1245
Beacon, NY 12508

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. Ison:

I have received your letter of March 25, to which you referred as an
"appeal", and in which you sought assistance in obtaining "911 tape
transcripts" from the New York City Police Department concerning an event
that occurred in August, 1993.

In this regard, it is noted at the outset that the Committee on Open
Government is authorized to provide advice concerning the Freedom of
Information Law. The Committee is not empowered to determine appeals or
otherwise compel an agency to grant or deny access to records. The
provision concerning the right to appeal a denial of access to records,
§89(4)(a), 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."

For your information, the person designated to determine appeals at the
Department is Susan Petito, Special Counsel.

Since the event occurred in 1993, I point out that the Freedom of
Information Law pertains to existing records. If neither a tape recording nor
a written transcript of the recording continues to exist, the Freedom of
Information Law would not be applicable.

If a tape recording or transcript of a 911 call is maintained by an
agency, I believe that the Freedom of Information Law would govern rights
of access. In brief, that statute 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. In my view, several of the
grounds for denial would be pertinent in determining the extent to which the
record of your interest must be disclosed.

One such ground for denial might be §87(2) (b) of the Freedom of
Information Law, which permits an agency to withhold records or portions
thereof when disclosure would result in " an unwarranted invasion of
personal privacy." It is possible that recordings or transcripts could be
withheld under the cited provision, for there may be privacy considerations
concerning those identified in the records.

Another ground for denial of possible relevance is §87(2)(e), which
states that an agency may 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."

The language quoted above indicates that it is based largely upon potentially
harmful effects of disclosure. The assertion of §87(2)(e) would be limited to
the capacity to withhold in conjunction with the harmful effects of disclosure
described in subparagraphs (i) through (iv) of the provision.

Also of possible significance is §87(2)(f), which permits an agency to
withhold records to the extent that disclosure would "endanger the life or
safety of any person." Since I am unfamiliar with the events to which the
record relates or the effects of its disclosure, the applicability of §87 (2)(f)
is conjectural.

Lastly, tape recordings or other records generated through an "E911"
system maintained by agencies outside of New York City are confidential
pursuant to §308(4) of the County Law. Since the County Law does not
apply to New York City, that provision, in my view, would not serve as a
basis for withholding the record sought.


I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

RJF:tt

cc: Susan Petito