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February 2, 2000

FOIL-AO-11934

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

As you are aware, I have received your letter of December 29 and the materials
pertaining to it. You have sought assistance concerning requests made on behalf of the
Naples, Florida Daily News for "discovery material presented to defense attorneys" by the
Office of the New York County District Attorney relating to certain pending criminal cases.
One of the requests was denied, and it is assumed that the other would be denied for the same
reasons. Specifically, the District Attorney's records access officer wrote that:

"...disclosure of these records would interfere with law
enforcement investigations and judicial proceedings. See
Matter of Pittari v. Pirro, ___A.D.2d___, (2d Dept. 1999),
N.Y.L.J., August 20, 1999, at 21, col.3). In addition, this
investigation is an ongoing investigation that is being
conducted by the New York County District Attorney's Office.
Disclosure of records would interfere with a law enforcement
investigation, would identify a confidential source and disclose
confidential information relating to a criminal investigation,
and reveal criminal investigative techniques and procedures.
See Public Officers Law §87(2)(e)(i)(iii) and (iv)."

From my perspective, although some elements of the records sought might justifiably
be withheld, the remainder must be disclosed. In this regard, I offer the following comments.

First, I believe that there is a distinction between rights of access conferred upon the
public under the Freedom of Information Law and rights conferred upon a defendant via the
use of discovery, and the courts have provided direction concerning the Freedom of
Information Law as opposed to the use of discovery under the Civil Practice Law and Rules
(CPLR) in civil proceedings, and discovery in criminal proceedings under the Criminal
Procedure Law (CPL). The principle is that the Freedom of Information Law is a vehicle that
confers rights of access upon the public generally, while the discovery provisions of the
CPLR or the CPL, for example, are separate vehicles that may require or authorize disclosure
of records due to one's status as a litigant or defendant.

As stated by the state's highest court, the Court of Appeals, in a case involving a
request made under the Freedom of Information Law by a person involved in litigation
against an agency: "Access to records of a government agency under the Freedom of
Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there
is pending or potential litigation between the person making the request and the agency"
[Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in
an earlier decision, the Court of Appeals determined that "the standing of one who seeks
access to records under the Freedom of Information Law is as a member of the public, and is
neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of
John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the
distinction between the use of the Freedom of Information Law as opposed to the use of
discovery in Article 31 of the CPLR. Specifically, it was found that:

"FOIL does not require that the party requesting records make
any showing of need, good faith or legitimate purpose; while
its purpose may be to shed light on governmental decision-
making, its ambit is not confined to records actually used in the
decision-making process (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure
by public agencies is, under FOIL, a public right and in the
public interest, irrespective of the status or need of the person
making the request.

"CPLR article 31 proceeds under a different premise, and
serves quite different concerns. While speaking also of 'full
disclosure' article 31 is plainly more restrictive than FOIL.
Access to records under CPLR depends on status and need.
With goals of promoting both the ascertainment of truth at trial
and the prompt disposition of actions (Allen v. Crowell-Collier
Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited
to that which is 'material and necessary in the prosecution or
defense of an action'" [see Farbman, supra, at 80].

More recently, the Court of Appeals held that the CPL does not limit a defendant's
ability to attempt to obtain records under the Freedom of Information Law [Gould v. New
York City Police Department, 89 NY2d 267 (1996)].

In sum, I believe that the Freedom of Information Law imposes a duty to disclose
records, as well as the capacity to withhold them, irrespective of the status or interest of the
person requesting them. To be distinguished are other provisions of law that may require
disclosure based upon one's status, e.g., as a defendant, and the nature of the records or their
materiality to a proceeding. Consequently, the materials made available in discovery to a
defendant through discovery may not be available in their entirety to the public under the
Freedom of Information Law. Conversely, there may be instances in which records are
beyond the scope of discovery, but which may be available under the Freedom of
Information Law.

Second and perhaps 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 reiterated its general view of the intent of the Freedom of
Information Law in Gould, 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 Police Department 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 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), and 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,
stating 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, the Office of the District Attorney has engaged in a
blanket denial of access in a manner which, in my view, is equally inappropriate. Again, I
am not suggesting that the records sought must be disclosed in full. Rather, based on the
direction given by the Court of Appeals in several decisions, the records must be reviewed by
that agency for the purpose of identifying those portions of the records that might 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).

In short, I believe that the basis for the denial of your appeal was incomplete and
inadequate, and that the blanket denial of the request was inconsistent with law.

I am mindful of the decision cited by the records access officer, Pittari v. Pirro, supra,
696 NYS2d 167. Notwithstanding my disagreement with some aspects of the holding in that
case, the facts presented there are different from those present in relation to your request. In
Pittari, a request was made by a defendant under the Freedom of Information Law for
"records compiled for law enforcement purposes ‘pertaining to [his] arrest and prosecution"
(id., 168). As you may be aware, §87(2)(e) of the Freedom of Information Law authorizes 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."

Based on the foregoing, only to the extent that the harmful effects of disclosure described in
subparagraphs (i) through (iv) would arise could §87(2)(e) permit an agency to deny access.

The court in Pittaro emphasized that:

"[t]he question is whether the nature of the records sought and
the timing of the FOIL request rendered those records exempt
from disclosure under FOIL. The Court of Appeals, in Matter
of Fink v. Lefkowitz, 47 N.Y.2d 567, 572, 419 N.Y.S.2d 467,
393 N.E.2d 463 noted:

‘[T]he 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'"
(id., 169).

The "timing" in this instance is apparently different from that in Pittari. As I
understand the matter, the defendant in that case sought records under the Freedom of
Information Law prior to discovery, for the court found that "[i]f a criminal proceeding is
pending, mandating FOIL disclosure would interfere with the orderly process of disclosure in
the criminal proceeding set forth in CPL article 240" (id., 171). In contrast, you have
requested records after discovery. Consequently, the harm sought to be avoided by the court
in Pittari would no longer be a consideration.

By disclosing records via discovery to defendants under Article 240 of the CPL, I
believe that an agency effectively loses its ability to cite certain grounds for denial under the
Freedom of Information Law, such as §87(2)(e). In short, by disclosing to a defendant, I
believe that an agency has effectively negated any contention that disclosure to the public
under the Freedom of Information Law would, for example, interfere with an investigation or
judicial proceeding or identify a confidential source. As suggested earlier, however, there
may be other grounds for denial that might be cited. For instance, while names of witnesses
might have been made available via discovery to a defendant, disclosure to the public might
constitute "an unwarranted invasion of personal privacy" pursuant to §87(2)(b) of the
Freedom of Information Law and, therefore, be withheld. Similarly, although a defendant
might obtain criminal history records regarding witnesses, it has been held that those records
are exempt from disclosure to the public under the Freedom of Information Law (see Woods
v. New York City Police Department, Sup. Ct., New York County, NYLJ, February 2, 1995
and Capital Newspapers v. Poklemba, Sup. Ct., Albany County, April 6, 1989)

For the reasons expressed above, the blanket denial of your request by the Office of
the District Attorney was, in my view, inconsistent with law, and that agency is required to
disclose the records sought, except to the extent that one or more of the grounds for denial,
other than §87(2)(e), could justifiably be cited.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Gary J. Galperin
Nina Keller