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March 20, 2000

FOIL-AO-12004

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

I have received your letter of February 8, as well as the materials attached to it.
Although a review of the correspondence raises a variety of issues, you asked that I focus on
an assertion by the City of Utica that "looking at City Court arraignment records is
sufficient" in order to "monitor" criminal activity in the City, as opposed to reviewing a "list"
of calls made to the Police Department within a given period, i.e., the previous 24 hours.
You contend that the acquisition of information by attending arraignments is inadequate, for
"court cases involve only crimes that are solved - - not those that remain unsolved." You
also referred to your efforts in obtaining "incident reports."

City officials asserted that, based on contacts with police agencies "throughout" the
state, they found "no instance" in which a police agency was "responsible for generating a
list to be provided to the media of all calls to the police from the previous 24 hour period."

In this regard, I offer the following comments.

First, while it may be so that police agencies do not generate lists involving a 24 hour
period, many, in my experience, maintain a police blotter or its equivalent, either manually or
electronically. Those kinds of records might not constitute "lists" that are generated with
respect to a particular time period; rather, my understanding is that they are records that are
continually updated. In essence, they are records that change with each new entry and that
are never "final" or "complete."

Second, as you are aware, the Freedom of Information Law pertains to all agency
records, and §86(4) of that statute defines the term "record" expansively" to include:

"any information kept, held, filed, produced, reproduced by,
with or for an agency or the state legislature, in any physical
form whatsoever including, but not limited to, reports,
statements, examinations, memoranda, opinions, folders, files,
books, manuals, pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer tapes or discs,
rules, regulations or codes."

Based on the foregoing, whether a police agency maintains information in the traditional
blotter or a paper or electronic equivalent, the format in which the information is kept is
irrelevant: it would constitute a "record" that falls within the coverage of the Freedom of
Information Law. Further, as advised in a recent opinion addressed to you, if an agency has
the ability to generate the data of an applicant's interest, if the data is accessible under the
law, and if the applicant is willing to pay the actual cost of reproduction, the agency is
obliged to do so.

Third, 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 v. New York City Police Department [89 NY2d 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, a police department contended that certain reports could be withheld in their
entirety on the ground that they fall within the exception regarding intra-agency materials,
§87(2)(g). 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 vl. 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.).

If the City maintains the traditional police blotter or equivalent, whether manually or
electronically, I believe that such a record would, based on case law, be accessible. In
Sheehan v. City of Binghamton [59 AD2d 808 (1977)], it was determined, based on custom
and usage, that a police blotter is a log or diary in which events reported by or to a police
department are recorded. That kind of record would consist of a summary of events or
occurrences, it would not include investigative information, and would be available under the
law.

The distinction between that kind of record and the ability to be present during or
obtain records of arraignments is, as you suggested, obvious. In the case of the former, a
review of a police blotter or equivalent records would enable the public to know of events
reported by or to police departments in their community. The arraignment deals only with
situations in which persons are charged.

If a police blotter, incident reports or other records include more information than the
traditional police blotter, it is likely in my view that portions of those records, depending on
their contents and the effects of disclosure, may properly be withheld. The remainder,
however, would be available. For instance, the fact that a robbery of a convenience store
occurred and is recorded in a paper or electronic document would clearly be available, even if
no one has been arrested or arraigned; the names of witnesses or suspects, however, might
properly be withheld for a time or perhaps permanently, depending on the facts. The fact that
an arson fire occurred and is recorded would represent information accessible under the law;
records indicating the course of the investigation might, for a time, justifiably be withheld.

In considering the kinds of records at issue, several of the grounds for denial might be
pertinent and serve to enable the City to withhold portions, but not the entire contents of
records.

For instance, the provision at issue in a decision cited earlier, Gould, §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" [id., 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.

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 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.

In sum, irrespective of the title or characterization of records, insofar as they exist,
they are subject to rights conferred by the Freedom of Information Law, and an agency is
obliged to review them for the purpose of determining the extent, if any, to which they may
properly be withheld.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
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cc: FOIL Appeal Committeee