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May 21, 1998

Mr. Edward R. Fitzpatrick
Times Union Reporter
TIMES-UNION
News Plaza Box 1500
Albany, NY 12212

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. Fitzpatrick:

I have received your letter of May 4 in which you sough an advisory opinion
concerning "the Times-Union's request for photographs of Jermaine Henderson."

You indicated that the Times-Union requested "all photographs of Henderson taken on
or about October 31, 1997, the night Henderson was allegedly assaulted by two Albany
police officers." Although the City disclosed the mugshot of Henderson taken on the
night of the event after the alleged assault, it denied the request for all other photos. In
sustaining the initial denial of access, the Appeals Officer wrote that:

"The Freedom of Information Law excepts from disclosure records
that are compiled for law enforcement purposes, which, if disclosed,
might deprive a person of a fair trial or impartial adjudication. The
photographs you have requested are evidence in an ongoing
investigation pertaining to a matter that has not yet been adjudicated
and are not subject to review under the Freedom of Information Law."

In this regard, I offer the following comments.

First, as you are aware, the incident to which the photos relate has been widely
publicized by the Times-Union and other area news media. Further, because the alleged
assault involved police officers, and because Henderson is a star basketball player for a
local college, a great deal has been written and aired about both the officers and
Henderson.

Second, with respect to rights of access, 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.

From my perspective, two of the grounds for denial are pertinent to an analysis of
rights of access. The extent to which they were properly asserted is, in my opinion,
dependent on the nature of the depiction in each photo.

Relevant are º87(2)(b), which authorizes an agency to withhold records when
disclosure would constitute " an unwarranted invasion of personal privacy", and
º87(2)(e)(ii), which enables an agency to withhold records "compiled for law enforcement
purposes" when disclosure would "deprive a person of a right to a fair trial or impartial
adjudication." If, for example, a photo graphically depicts Henderson's injuries or includes
intimate personal details, I would conjecture that a court would determine that such a
record could be withheld under º87(2)(b). Similarly, disclosure of a photo of that nature
might adversely affect the ability of the officers to have a fair trial. If that is so, it appears
that º87(2)(e)(ii) could justifiably be asserted.

On the other hand, if a photo of Henderson is similar to the mugshot taken on the night
of the event, or if it does not depict intimate personal details or reflect in a graphic manner
the nature of injuries sustained, for example, neither of the grounds for withholding cited
earlier would in my view justify a denial of access.

I note that the court of Appeals, the State's highest court, has stressed that the
Freedom of Information Law should be construed expansively. Most recently, in Gould v.
New York City Police Department [87 NY 2d 267 (1996)], the Court reiterated its
general view of the intent of the Freedom of Information Law, 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 º 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 Police Department contended that "complaint follow up reports"
could be withheld in their entirety on the ground that they fall within the exception
regarding intra-agency materials, º87(2)(g), an exception separate from that cited in
response to your request. The Court, however, wrote that:

"Petitioners contend that because the complaint follow-up reports contain
factual data, the exemptiondoes not justify complete nondisclosure of the
reports. We agree" (id., 276), and stated as a generalprinciple 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, stating 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 vl. 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, all of the photos taken on the night of the incident have
been withheld. While I am not suggesting that each photo sought must be disclosed,
based on the direction given by the Court of Appeals, the records must be reviewed
individually by the City for the purpose of identifying those 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, an agency may deny access records under an exception "as long as the requisite
particularized showing is made" (id., 277).

I note that a similar review was required in a case involving videotapes of events
occurring at a correctional facility. In the initial series of decisions relating to a request for
videotapes of uprisings at a correctional facility, it was determined that a blanket denial of
access was inconsistent with law [Buffalo Broadcasting Co. v. NYS Department of
Correctional Services, 155 AD2d 106]. Following the agency's review of the videotapes
and the making of a series of redactions, a second Appellate Division decision affirmed the
lower court's determination to disclose various portions of the tapes that depicted scenes
that could have been seen by the general inmate population. However, other portions,
such as those showing "strip frisks" and the "security system switchboard", were found to
have been properly withheld on the grounds, respectively, that disclosure would constitute
an unwarranted invasion of personal privacy [see º87(2)(b)] and endanger life and safety
[º87(2)(f)] [see 174 AD2d 212 (1992)].

In sum, based on the language of the Freedom of Information Law and its judicial
interpretation, I believe that the City is required to review each photo falling within the
scope of your request, individually, to attempt to ascertain whether any fall within the
grounds for denial appearing in the statute. From my perspective, unless a photo depicts
the subject in a manner that is intimate, as in the case of the strip frisk or a demonstration
of extreme emotion, for example, it would be unlikely, in consideration of the release of
the mugshot taken during the same evening, that disclosure would result in an
unwarranted invasion of Mr. Henderson's privacy. Similarly, it would seem that the
contention that disclosure "might deprive a person of a fair trial or impartial adjudication"
could be sustained only if a photo provides a graphic depiction that could in some way be
prejudicial (i.e., hypothetically, a depiction of a person bleeding profusely or writhing in
pain due to a beating). If the photos do not include the kind of graphic detail described
above, the City, in my opinion, could not likely meet the burden of defending secrecy.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Harold Greenstein