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January 26, 1999

 

Ms. Carolyn Schurr
Counsel
Newsday
235 Pinelawn Road
Melville, NY 11747-4250

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. Schurr:

I have received your correspondence of January 13 in which you sought an opinion
concerning the Freedom of Information Law. You wrote that "Newsday reporters have recently
had difficulties obtaining crime locations from the Nassau County Police Department." You
added that "[i]n connection with a burglary-rape in Elmont...the Police Department stated that it
was denying [Newsday] the crime location based upon Section 50-b of the Civil Rights Law."

From my perspective, portions of records indicating the locations of crimes have been
historically available to the public and have implicitly been determined to be available under the
Freedom of Information Law. In this regard, I offer the following comments.

As you are aware, 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.

In my view, police records indicating the location of crimes have historically been
available as police blotter entries or as portions of equivalent records. The phrase "police
blotter" is not specifically defined in any statute. It is my understanding that it is a term that has
been used, in general, based upon custom and usage. The contents of what might be
characterized as a police blotter may vary from one police department to another, and often
police departments use different terms for records or reports analogous to police blotters. In
Sheehan v. City of Binghamton [59 AD 2d 808 (1977)], it was determined that, based on custom
and usage, a police blotter is a log or diary in which any event reported by or to a police
department is recorded. The decision specified that a traditional police blotter contains no
investigative information, but rather merely a summary of events or occurrences and that,
therefore, it is accessible under the Freedom of Information Law. When a police blotter or other
record is analogous to that described in Sheehan in terms of its contents, I believe that the public
has the right to review it in its entirety.

If police blotters or records prepared for a similar purpose are more expansive than the
traditional police blotter described in Sheehan, portions might be withheld, depending upon their
contents and the effects of disclosure. For instance, a police blotter or equivalent record might
include names of witnesses or victims, the disclosure of which might constitute an unwarranted
invasion of personal privacy [see §87(2)(b)] or even endanger one's life or safety [see §87(2)(f)].
However, those portions of the records indicating that an event occurred at a particular location,
i.e., a crime, an automobile accident, etc., would be the kinds of items found to be clearly
accessible.

The statute upon which the Police Department has relied to deny access would not be
applicable in my opinion, for the disclosure of the location of an event would not identify the
victim. Subdivision (1) of §50-b states that:

"The identity of any victim of a sex offense, as defined in article one hundred
thirty or §255.25 of the penal law, shall be confidential. No report, paper, picture, photograph,
court file or other documents, in the custody or possession of any public officer or employee,
which identifies such victim shall be made available for public inspection. No such public
officer or employee shall disclose any portion of any police report, court file, or other document,
which tends to identify such a victim except as provided in subdivision two of this section."

When §50-b is pertinent, a record identifying the victim of a sex offense would be
exempted from disclosure pursuant to §87(2)(a) of the Freedom of Information Law.
Nevertheless, in this instance, if the location of the commission of the crime is disclosed, it
would be impossible to identify the victim with any degree of certainty or accuracy. A victim of
a rape that occurred at a particular location might have been a resident, a friend, a relative, a
cleaning person, a meter reader or any other person performing some sort of function or
providing a service at that location.

In short, I believe that the location of a crime is an item of information that has routinely
been disclosed both prior to the enactment of and in accordance with the Freedom of Information
Law. Further, revelation of the location would not, in my view, enable recipients of that
information to ascertain the identity of the victim.

Lastly, it is emphasized that the burden of defending secrecy rests with the agency that
denies access and that the Freedom of Information Law has consistently been construed
expansively by the courts. The Court of Appeals expressed its general view of the intent of the
Freedom of Information Law most recently in a decision focusing on a denial of access to
records by another police department. In Gould v. New York City Police Department [87 NY 2d
267 (1996)], the Court determined 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
§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 agency 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,
§87(2)(g), an exception separate from that cited in response to Newsday's request. The Court,
however, wrote that: "Petitioners contend that because the complaint follow-up reports contain
factual data, the exemption does not justify complete nondisclosure of the reports. We agree"
(id., 276). The Court then stated as a general principle 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, directing 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
v. 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 an effort to resolve the matter, a copy of this opinion will be forwarded to Nassau
County Police Department.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm
cc: Sgt. Regina Waytowich, Commanding Officer, Legal Bureau