NY.gov Portal State Agency Listing

 

May 24, 1999

 

Ms. Christine A. Wills
427 Second Street
Troy, NY 12180

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. Wills:

I have received your letters of April 19 and May 10, as well as related materials. As
in the case of previous correspondence, you have sought an opinion concerning your right to
obtain records from the Office of the Rensselaer County District Attorney pertaining to a drug
raid in the City of Troy in 1992. The request was initially denied, and the denial was affirmed
in a determination of your appeal on May 7.

From my perspective, while some of the records sought could justifiably have been
withheld, others would appear to be available, perhaps in part. In this regard, I offer the
following comments.

First and most importantly, 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. It is emphasized that the introductory language of §87(2)
refers to the authority to withhold "records or portions thereof" that fall within the scope of
the exceptions that follow. In my view, the phrase quoted in the preceding sentence
evidences a recognition on the part of the Legislature that a single record or report, for
example, might include portions that are available under the statute, as well as portions that
might justifiably be withheld. That being so, I believe that it also imposes an obligation on
an agency to review records sought, in their entirety, to determine which portions, if any,
might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals, the state's highest court, expressed its general view of the
intent of the Freedom of Information Law most recently in Gould v. New York City Police
Department [87 NY 2d 267 (1996)], 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 § 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, also known as "DD5's",
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 those cited in response to your
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 the context of your request, it appears that a variety of records have been withheld
in their entirety. While I am not suggesting that the records sought must necessarily be
disclosed in full, based on the direction given by the Court of Appeals in several decisions,
I believe that the records must be reviewed for the purpose of identifying those portions that
fall within the scope of one or more of the grounds for denial of access. As the Court stated
later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-
up reports, or specific portions thereof, under any other applicable exemption, such as the
law-enforcement exemption or the public-safety exemption, as long as the requisite
particularized showing is made" (id., 277; emphasis added).

One aspect of the request involved the "exact dates and approximate times said
surveillance were conducted, and by what officers." The records were withheld under
§87(2)(e)(i) and (iv). Those provisions state that an agency may withheld records compiled
for law enforcement purposes when disclosure would:

"i. interfere with law enforcement investigations or judicial
proceedings...

iv. reveal criminal investigative techniques or procedures,
except routine techniques and procedures."

Since the event occurred seven years ago, it is difficult to envision how disclosure now would
interfere with an investigation or, therefore, justify reliance on §87(2)(e)(i)..

The leading decision concerning §87(2)(e)(iv) is Fink v. Lefkowitz, which involved
access to a manual prepared by a special prosecutor that investigated nursing homes, in which
the Court of Appeals held that:

"The purpose of this exemption is obvious. Effective law
enforcement demands that violators of the law not be apprised
the nonroutine procedures by which an agency obtains its
information (see Frankel v. Securities & Exch. Comm., 460
F2d 813, 817, cert den 409 US 889). However beneficial its
thrust, the purpose of the Freedom of Information Law is not
to enable persons to use agency records to frustrate pending
or threatened investigations nor to use that information to
construct a defense to impede a prosecution...

"Indicative, but not necessarily dispositive of whether
investigative techniques are nonroutine is whether disclosure
of those procedures would give rise to a substantial likelihood
that violators could evade detection by deliberately tailoring
their conduct in anticipation of avenues of inquiry to be
pursued by agency personnel (see Cox v. United States Dept.
of Justice, 576 F2d 1302, 1307-1308; City of Concord v.
Ambrose, 333 F Supp 958)."

As the Court of Appeals has suggested, to the extent that the records in question
include descriptions of investigative techniques which if disclosed would enable potential
lawbreakers to evade detection or endanger the lives or safety of law enforcement personnel
or others [see also, Freedom of Information Law, §87(2)(f)], a denial of access would be
appropriate. The request, however, does not involve the nature of the surveillance, but merely
the dates and times. As such, it is questionable in my view whether or the extent to which
that exception would be pertinent or applicable.

The names of the officers would, in my view, be public. In short, they would have
been involved in the performance of their official duties. Further, again, the event to which
the records relate occurred nearly seven years ago.

Another aspect of the request concerns the "exact date and approximate time said
neighborhood complaints were lodged..." The request was denied on the basis of
§87(2)(e)(iii) "as it would identify a confidential source or disclose confidential information
relating to a criminal investigation." Additionally, §87(2)(f), which enables an agency to
withhold records insofar as disclosure "would endanger the life or safety of any person", was
cited. In the case of both exceptions, if there were few people living in the neighborhood at
the time of the event, and if the deletion of personally identifying details would not serve to
preclude you or others from ascertaining the identity of confidential informants or residents,
the denial would likely have been proper. However, if numerous people lived or were present
in the neighborhood at the time of the event, it is doubtful, in my opinion, that the identities
of individuals could be ascertained after names or other personal details are deleted. If that
is so, I believe that portions of the records indicating the date and approximate time that
complaints were made would be accessible.

One element of the request apparently involved a tape recorded conversation between
a confidential informant and a person later named as a defendant. If indeed the recording
includes the voice of an informant, on the basis of §87(2)(e)(iii), I would agree with the
District Attorney's denial of access. Similarly, if a $20 dollar bill was marked, and disclosure
of the bill "would permit the public to potentially determine the method said $20 bill is
'marked' to ensure its authenticity", a denial of access would appear to be appropriate, for
disclosure might enable potential lawbreakers to evade detection with that knowledge.
Moreover, currency, in my view, would constitute evidentiary material rather than a "record"
as defined by §86(4) of the Freedom of Information Law [see Allen v. Strojnowski, 129
AD2d 200, motion for leave to appeal denied, 70 NY 2d 871 (1989)]. If that is so, the
Freedom of Information Law would not apply.

In sum, while some aspects of your request appear to have been properly denied,
others likely should have been granted.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Joseph M. Ahearn
Andrew M. Martin