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August 11, 1999

 

E-Mail

TO: Janon Fisher

FROM: Robert J. Freeman, Executive Director

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.

As you are aware, I have received your letter of July 19. You have sought guidance
in your efforts to obtain copies of "the 911 tapes and/or internal dispatch voice
communications, say between dispatcher and police and an incident or arrest report..." You
have also asked for "a solid definition of when a case is considered no longer under
investigation."

In this regard, I offer the following comments.

First, 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.

Second, assuming that a 911 call is made through an "enhanced" system, a so-called
"E-911 system, the record of that call would be confidential. In an E-911 system, in addition
to the information offered orally by the caller, the recipient of the call also receives the phone
number of the instrument used to make the call and the location from which the call was
made. Relevant in that circumstance is the first ground for denial, §87(2)(a), which pertains
to records that "are specifically exempted from disclosure by state or federal statute." One
such statute is §308(4) of the County Law, which states that:

"Records, in whatever form they may be kept, of calls made to
a municipality's E911 system shall not be made available to or
obtained by any entity or person, other than that municipality's
public safety agency, another government agency or body, or
a private entity or a person providing medical, ambulance or
other emergency services, and shall not be utilized for any
commercial purpose other than the provision of emergency
services."

In my view, "records...of calls" means either a recording or a transcript of the
communication between a person making a 911 emergency call, and the employee who
receives the call. I do not believe that §308(4) can validly be construed to mean records
regarding or relating to a 911 call. If that were so, innumerable police and fire reports,
including arrest reports and police blotter entries, would be exempt from disclosure in their
entirety.

Third, the calls made by a dispatcher, for example, to a police officer following the
receipt of a 911 call would not be subject to the County Law, but rather to the Freedom of
Information Law, as would incident and arrest reports. With respect to those records, the
issue in my view does not involve defining when a case is no longer under investigation; I
know of no such definition. Often records or portions of records are available by law even
though an investigation is ongoing; conversely, there may be records or portions thereof that
may be withheld even though an investigation has ended. In short, an analysis of public
rights of access or an agency's authority to deny access to records involves the content of the
records and the effects of disclosure.

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 inquiry, relevant is a
decision by the Court of Appeals concerning "complaint follow up reports" prepared by police
officers and police officers' memo books 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, the decision states that:

"...we note that one court has suggested that complaint
follow-up reports are exempt from disclosure because they
constitute nonfinal intra-agency material, irrespective of
whether the information contained in the reports is 'factual
data' (see, Matter of Scott v. Chief Medical Examiner, 179
AD2d 443, 444, supra [citing Public Officers Law
§87[2][g][111]). However, under a plain reading of
§87(2)(g), the exemption for intra-agency material does not
apply as long as the material falls within any one of the
provision's four enumerated exceptions. Thus, intra-agency
documents that contain 'statistical or factual tabulations or
data' are subject to FOIL disclosure, whether or not embodied
in a final agency policy or determination (see, Matter of
Farbman & Sons v. New York City Health & Hosp. Corp., 62
NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d
577)...

"...Although the term 'factual data' is not defined by statute,
the meaning of the term can be discerned from the purpose
underlying the intra-agency exemption, which is 'to protect the
deliberative process of the government by ensuring that
persons in an advisory role [will] be able to express their
opinions freely to agency decision makers' (Matter of Xerox
Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting
Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546,
549]). Consistent with this limited aim to safeguard internal
government consultations and deliberations, the exemption
does not apply when the requested material consists of
'statistical or factual tabulations or data' (Public Officers Law
87[2][g][i]. Factual data, therefore, simply means objective
information, in contrast to opinions, ideas, or advice
exchanged as part of the consultative or deliberative process
of government decision making (see, Matter of Johnson
Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on
op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v.
Yudelson, 68 AD2d 176, 181-182).

"Against this backdrop, we conclude that the complaint
follow-up reports contain substantial factual information
available pursuant to the provisions of FOIL. Sections of the
report are devoted to such purely factual data as: the names,
addresses, and physical descriptions of crime victims,
witnesses, and perpetrators; a checklist that indicates whether
the victims and witnesses have been interviewed and shown
photos, whether crime scenes have been photographed and
dusted for fingerprints, and whether neighborhood residents
have been canvassed for information; and a blank space
denominated 'details' in which the officer records the
particulars of any action taken in connection with the
investigation.

"However, the Police Department argues that any witness
statements contained in the reports, in particular, are not
'factual' because there is no assurance of the statements'
accuracy and reliability. We decline to read such a reliability
requirement into the phrase 'factual data', as the dissent would
have us do, and conclude that a witness statement constitutes
factual data insofar as it embodies a factual account of the
witness's observations. Such a statement, moreover, is far
removed from the type of internal government exchange
sought to be protected by the intra-agency exemption (see,
Matter of Ingram v. Axelrod, 90 AD2d 568, 569 [ambulance
records, list of interviews, and reports of interviews available
under FOIL as 'factual data']). By contrast, any impressions,
recommendations, or opinions recorded in the complaint
follow-up report would not constitute factual data and would
be exempt from disclosure. The holding herein is only that
these reports are not categorically exempt as intra-agency
material. 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" [Gould,
Scott and DeFelice v. New York City Police Department,
89 NY2d 267, 276-277 (1996); emphasis added by the Court].

Based on the foregoing, the agency could not claim that the complaint reports 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, as well as others that you requested.

I note that in a case dealing with tapes of conversations between a dispatcher and a
police officer, although the tapes constituted "intra-agency material", the court, based on their
contents, found that they consisted of "instructions to staff that affect the public" that had to
be disclosed [Buffalo Broadcasting Co. v. City of Buffalo, 126 AD 2d 983 (1987)]/

Also of potential significance regarding the records of your interest 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 or a witness, for example.

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 issues and that
I have been of assistance.

RJF:jm