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August 28, 2000

FOIL-AO-12299

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 July 19 in which you focused on
public access to the contents of domestic incident reports. You described three scenarios that
commonly arise, and I am in general agreement with your approach to disclosure.

The first involves requests by "involved parties", the complainant or victim and the
subject of the complaint, each of whom would in most instances have unrestricted access to
the reports. The second involves a request by an "interested party", such as a person seeking
a report relating to an ex-spouse and that person's new spouse or "significant other." You
indicated that in those instances, the reports are reviewed "on a case by case basis", for the
person seeking the record may have valid concerns pertaining to the safety of his or her
children, for example. You wrote that reports may be released in that kind of situation, but
that in others, the report may be "heavily redacted" prior to disclosure. The case by case
analysis is, in my view, fully appropriate.

As we have discussed, the standard in the Freedom of Information Law pertinent to
the matter, the ability to withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy" [§87(2)(b)], offers flexibility that enables
government officials to make reasoned decisions based on the facts and the effects of
disclosure. You referred in your letter to your "gut feeling", and in considering issues
involving privacy, it has been suggested that the "gut reaction" usually will lead to the correct
legal conclusion. As stated by the Court of Appeals, "the essence of the exemption" involves
details "that would ordinarily and reasonably regarded as intimate, private information"
[Hanig v. State Department of Motor Vehicles, 79 NY2d 106, 112 (1992)]. The "gut feeling"
that you described is, in my view, consistent with the direction of the state's highest court,
and should be applied in situations involving the second scenario.

The third scenario involves requests by members of the public and the news media.
You wrote that the reports are heavily redacted to protect personal privacy, and that names
are not ordinarily disclosed, unless an arrest or some other significant police intervention
occurs. Again, I am in general agreement with your position. Names of those involved in a
domestic dispute need not be disclosed in my opinion, unless there is an arrest, in which case
the identity of the person charged would clearly be public, or some other event in which
disclosure would result in a permissible rather than an unwarranted invasion of personal
privacy.

Becoming common, however, is the request "for any and all reports involving police
calls involving a particular family or address." You referred to a request in which the
Department located fifteen domestic incidents pertaining to the parties named and questioned
whether, even after the deletion of identifying details, "the simple confirmation of so many
domestic incidents may arguably be unwarranted." From my perspective, it is unlikely that a
denial of a request analogous to that described could be justified. While the details of an
event or the names of those involved might justifiably withheld, the fact that an event
occurred involving the presence of a police officer would, in my view, be public. In short,
the presence of a police vehicle at a particular time and location due to a call from a
complainant, a family member or a neighbor is not secret, and a record that makes reference
to the event would, in my opinion, be public. That there may have been a number of events
at a certain location would not, in my view, alter rights of access to records.

In a related vein, although there is no legal definition of the phrase "police blotter",
based on custom, it has been held that a police blotter is typically a log or diary in which
events recorded by or to a police department are recorded. Assuming that the blotter includes
no names or investigative information, but merely consists of a summary of events or
occurrences, such a record has been found to be accessible under the Freedom of Information
Law [see Sheehan v. City of Binghamton, 59 AD2d 808 (1977). Disclosure of the portions
of the reports at issue that indicate that an event occurred would appear to be analogous to the
disclosure of the contents of the traditional police blotter.

I hope that I have been of assistance. If you would like to discuss the matter, please
feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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