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October 28, 1999

 

Mr. H. Thompson
96-B-0910
Southport Correctional Facility
P.O. Box 2000
Pine City, NY 14871

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. Thompson:

I have received your letter of September 13 in which you sought my opinion concerning
your right to obtain certain records from the Department of Correctional Services relating to an
incident in which you were accused of assaulting correction officers. The records in question
involve an "unusual incident report" and copies of harassment grievances concerning seven
correction officers.

In this regard, by way of background, 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.

The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted
from disclosure by state or federal statute." One such statute is §50-a of the Civil Rights Law. In
brief, that statute provides that personnel records of police and correction officers that are used to
evaluate performance toward continued employment or promotion are confidential. The Court of
Appeals, the State's highest court, in reviewing the legislative history leading to its enactment,
has held that the exemption from disclosure conferred by §50-a of the Civil Rights Law "was
designed to limit access to said personnel records by criminal defense counsel, who used the
contents of the records, including unsubstantiated and irrelevant complaints against officers, to
embarrass officers during cross-examination" [Capital Newspapers v. Burns, 67 NY2d 562, 568
(1986)]. In another decision which dealt with unsubstantiated complaints against correction
officers, the Court of Appeals held that the purpose of §50-a "was to prevent the release of
sensitive personnel records that could be used in litigation for purposes of harassing or
embarrassing correction officers" [Prisoners' Legal Services v. NYS Department of Correctional
Services, 73 NY 2d 26, 538 NYS 2d 190, 191 (1988)]. The Court in an opinion rendered earlier
this year reiterated its view of §50-a, citing that decision and stating that:
"...we recognized that the decisive factor in determining whether an officer's
personnel record was exempted from FOIL disclosure under Civil Rights Law §50-a was the
potential use of the information contained therein, not the specific purpose of the particular
individual requesting access, nor whether the request was actually made in contemplation of
litigation.

æDocuments pertaining to misconduct or rules violations by corrections
officers û which could well be used in various ways against the officers û are the very sort of
record which *** was intended to be kept confidential. *** The legislative purpose underlying
section 50-a *** was *** to protect the officers from the use of records *** as a means for
harassment and reprisals and for the purpose of cross-examination' (73 NY2d, at 31 [emphasis
supplied])" (Daily Gazette v. City of Schenectady, 93 NY2d 145, 156- 157 (1999)].

Based on the foregoing, the grievances appear to be exempt from disclosure under the Freedom
of Information Law and properly withheld by the Department.

With respect to the unusual incident report, several grounds for denial may be relevant.
That report would fall within the scope of §87(2)(g), which permits 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.

Also 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 matter and that I
have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Anthony J. Annucci