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June 24, 1998

Mr. David Wood
84-A-4819, Drawer B
Stormville, NY 12582-0010

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. Wood:

I have received your letter of May 29. You have sought assistance in obtaining
records from the Department of Correctional Services.

According to your letter, soon after the TWA Flight 800 disaster, you sought to share
your ideas concerning its cause, and you contacted the Commissioner of the Department.
You were later visited by two agents from the Department's Office of Inspector General.
Most recently, you requested records from one of the investigators who interviewed you that
would indicate the results of the investigation relative to the ideas that you offered. As of the
date of your letter to this office, you had received no response.

In this regard, I offer the following comments.

First, pursuant to regulations promulgated by the Committee on Open Government
(21 NYCRR Part 1401), each agency is required to designate one or more persons as
"records access officer." The records access officer has the duty of coordinating an agency's
response to requests. While I believe that the investigator in receipt of your request should
have responded in a manner consistent with the Freedom of Information Law or forwarded
your request to the records access officer, it is suggested that you resubmit your request to
the records access officer, Mr. Mark Shepard.

Second, it is noted that 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..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given
within five business days, or if an agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my opinion, be considered
to have been constructively denied. In such a circumstance, I believe that the denial may be
appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision
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, 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."

In addition, it has been held that when an appeal is made but a determination is not
rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of
the Freedom of Information Law, the appellant has exhausted his or her administrative
remedies and may initiate a challenge to a constructive denial of access under Article 78 of
the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774
(1982)].

For your information, the person designated by the Commissioner to determine
appeals is Counsel to the Department, Mr. Anthony J. Annucci.

Third, the extent to which you might have the right to obtain the records of an
investigation is, in my view, questionable. 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 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 request, relevant is a
decision by the Court of Appeals concerning records prepared by police officers 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, it was determined that the agency could not claim that the
records 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. [Gould, Scott and DeFelice v. New York City Police
Department, 89 NY2d 267 (1996)].

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, a witness, or others interviewed in an investigation.

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.

I hope that the foregoing serves to enhance your understanding of the Freedom of
Information Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Senior Investigator Torreggiani
Mark Shepard, Records Access Officer