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July 15, 1998

 

Mr. Ethan Jacobs
2801 Bedford Avenue
Brooklyn, NY 11210

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. Jacobs:

I have received your letter of June 29, as well as the materials attached to it. You
have sought assistance in relation to a longstanding request for records of the New York City
Police Department.

As I understand the matter, you are interested in obtaining ticket serial numbers
assigned to particular police officers. In addition, you wrote that you would like to obtain "a
record of tickets already issued, and to whom they were issued - but prior to any
determination regarding their guilt or non-guilt." The matter has involved a series of
correspondence between yourself and officials of the Police Department covering a period of
approximately a year. As of the date of your letter to this office, no determination had been
rendered concerning rights of access to the records. Based upon a review of the
correspondence, I offer the following comments.

First, a primary issue in my view relates to the requirement imposed by §89(3) of the
Freedom of Information Law that an applicant "reasonably describe" the records. Part of the
problem appears to have involved the use of the language and perhaps semantics. As I
interpret the materials, Department personnel were not familiar with the phrase you used in
seeking the records, "control records." Although it appears in certain state regulations, that
phrase might not be used commonly within the New York City Police Department. Rather
than naming or attempting to name a particular record, it has been suggested that records
sought be described by means of their nature, content or functions. By so doing, problems
frequently can be avoided by mischaracterizing certain records or by characterizing them in
a way that is unfamiliar to an agency's staff.

As you are aware, the State's highest court has held that to deny a request on the
ground that it fails to reasonably describe the records, an agency must establish that "the
descriptions were insufficient for purposes of locating and identifying the documents sought"
[Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)]. The Court in Konigsberg found that
the agency could not reject the request due to its breadth and also stated that:
"respondents have failed to supply any proof whatsoever as to
the nature - or even the existence - of their indexing system:
whether the Department's files were indexed in a manner that
would enable the identification and location of documents in
their possession (cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192 [Bazelon, J.]
[plausible claim of nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3), may be presented
where agency's indexing system was such that 'the requested
documents could not be identified by retracing a path already
trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of
the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the
Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an
agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able
to locate the records on the basis of an inmate's name and identification number.

While I am unfamiliar with the Department's recordkeeping systems, to the extent that
the records sought can be located with reasonable effort, I believe that the requests would
have met the requirement of reasonably describing the records. On the other hand, if the
records are not maintained in a manner that permits their retrieval except by reviewing
perhaps thousands of records individually in an effort to locate those falling within the scope
of a request, to that extent, a request would not in my opinion meet the standard of
reasonably describing the records.

It would seem that the regulations promulgated by the Department of Motor Vehicles,
15 NYCRR §122.3(c), requires the Department to maintain the records sought in a manner
that would enable staff to retrieve them by serial number or via the other identifiers that you
suggested in your request. The cited provision, which is entitled "Recordkeeping", states
that:

"Each police agency shall maintain a control record of all
tickets assigned to police officers under its jurisdiction and a
record of the disposition of all summonses and complaints,
appearance tickets and notices of violations issued."

Again, unless the Department cannot locate and identify the records sought due to the nature
of its filing systems, I believe that the request would meet the standard of "reasonably
describing" the records.

Second, with respect to the delay in granting access, as you are aware, 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.

Notwithstanding the foregoing, in my view, every law must be implemented in a
manner that gives reasonable effect to its intent, and I point out that in its statement of
legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon
the state and its localities to extend public accountability wherever and whenever feasible."
Therefore, if records are clearly available to the public under the Freedom of Information
Law, or if they are readily retrievable, there may be no basis for a lengthy delay in disclosure.
As the Court of Appeals, the State's highest court, has asserted:

"...the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on
goals as broad as the achievement of a more informed
electorate and a more responsible and responsive officialdom.
By their very nature such objectives cannot hope to be
attained unless the measures taken to bring them about
permeate the body politic to a point where they become the
rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore
merely punctuates with explicitness what in any event is
implicit" [Westchester News v. Kimball, 50 NY2d 575, 579
(1980)].

Lastly, since you expressed interest in obtaining "a record of tickets already issued,
and to whom they were issued - but prior to any determination regarding their guilt or non-guilt", it is likely that some of those records may be withheld. In my view, there is a
distinction in terms of rights of access between those situations in which a person has been
found to have engaged in a violation of law, and those in which charges against an individual
have been dismissed in his or her favor. In the latter case, records relating to an event that
did not result in a conviction ordinarily become sealed pursuant to §160.50 and perhaps other
provisions of the Criminal Procedure Law. However, if it is determined that a person has
engaged in a violation, i.e., for speeding, the records would be available from the courts in
which the proceedings occurred. Further, the Court of Appeals determined in 1984 that
traffic tickets issued and lists of violations of the Vehicle and Traffic Law compiled by the
State Police during a certain period in a county must be disclosed, unless charges were
dismissed and the records sealed pursuant to provisions of the Criminal Procedure Law [see
Johnson Newspaper Corp. v. Stainkamp, 61 NY2d 958). In short, identifying details
pertaining to person whose charges were dismissed likely would not be accessible.

In a related vein, you expressed interest in obtaining "a list of tickets issued by specific
officers." As you may be aware, §89(3) of the Freedom of Information Law provides in part
that an agency is not required to create a record in response to a request. Therefore, if no
"list" exists, the Department would not be obliged to create a list on your behalf.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Susan Petito