NY.gov Portal State Agency Listing

 

December 19, 2000

FOIL-AO-12412

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 November 10 and the materials attached to it. You have sought
an opinion concerning the propriety of a denial of your request by the New York City Department
of Transportation for records indicating the locations of cameras used in the City's Red Light
Camera Program. The Department denied the request, indicating that the list of locations "has never
been deemed to be public information, because it is used for law enforcement purposes." You
contended that the locations should be made public, for the location of a camera is provided
whenever a Notice of Liability is issued.

In this regard, I offer the following comments.

First, the provision in the Freedom of Information Law to which you referred that pertains
specifically to the Red Light Camera Program, §87(2)(j), expired and was repealed on December 1,
1999. Moreover, that provision did not deal with the location of cameras but rather with the
"recorded images" captured by cameras.

Second, 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.

The provision to which the Department alluded in the determination of the appeal, §87(2)(e),
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."

From my perspective, it is difficult to envision how the harmful effects of disclosure described in
subparagraphs (i) through (iv) would arise by means of disclosure, particularly in view of the
disclosures made through the issuance of Notices of Liability. If locations indicating the use of
cameras are made known in the notices, there is nothing secret about them.

Further, if the intent of the Program is to improve traffic safety and encourage drivers to
better comply with law, a decision rendered by the Court of Appeals, the State's highest court,
suggests that disclosure may be beneficial and proper. Specifically, in Fink v. Lefkowitz [47 NY2d
567 (1979)], the issue involved access to an audit manual prepared by the Special Prosecutor for
Nursing Homes, and it was found that:

"...the 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. at 572).

However, the Court added that:

"To be distinguished from agency records compiled for law
enforcement purposes which illustrate investigative techniques, are
those which articulate the agency's understanding of the rules and
regulations it is empowered to enforce. Records drafted by the body
charged with enforcement of a statute which merely clarify procedural
or substantive law must be disclosed. Such information in the hands
of the public does not impede effective law enforcement. On the
contrary, such knowledge actually encourages voluntary compliance
with the law by detailing the standards with which a person is
expected to comply, thus allowing him to conform his conduct to
those requirements (see Stokes v. Brennan, 476 F2d 699, 702;
Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795; Davis,
Administrative Law [1970 Supp], section 3A, p 114).

"Indicative, but not necessarily dispositive of whether investigative
techniques are nonroutine is whether disclosure of those procedures
would give rise to a substantial likelihood that violators could evade
detection by deliberately tailoring their conduct in anticipation of
avenues of inquiry to be pursued by agency personnel (see Cox v.
United States Dept. of Justice, 576 F2d 1302, 1307-1308; City of
Concord v. Ambrose, 333 F Supp 958)."

In applying those criteria to specific portions of the manual, which was compiled for law
enforcement purposes, the Court found that:

"Chapter V of the Special Prosecutor's Manual provides a graphic
illustration of the confidential techniques used in a successful nursing
home prosecution. None of those procedures are 'routine' in the sense
of fingerprinting or ballistic tests (see Senate Report No. 93-1200, 93
Cong 2d Sess [1974]). Rather, they constitute detailed, specialized
methods of conducting an investigation into the activities of a
specialized industry in which voluntary compliance with the law has
been less then exemplary.

"Disclosure of the techniques enumerated in those pages would
enable an operator to tailor his activities in such a way as to
significantly diminish the likelihood of a successful prosecution. The
information detailed on pages 481 and 482 of the manual, on the
other hand, is merely a recitation of the obvious: that auditors should
pay particular attention to requests by nursing homes for Medicaid
reimbursement rate increases based upon projected increase in cost.
As this is simply a routine technique that would be used in any audit,
there is no reason why these pages should not be disclosed" (id. at
573).

Posting of the speed limit encourages drivers to comply with law by not exceeding the legal
limit. In this region, it is announced in advance that there will be DWI checkpoints; presumably the
announcement is intended to discourage drivers from drinking. Similarly, in the context of the
situation that you described, if it is known that a camera is used in a certain location, that knowledge
may encourage drivers to obey and comply with law.

Lastly, the Court in Fink considered the intent of the Freedom of Information Law and found
that "the balance is presumptively struck in favor of disclosure", that an agency must "articulate
particularized and specific justification" to deny access to a record, and that a record may properly
be withheld only when "the material requested falls squarely within the ambit" of one of the grounds
for denial (id., 571).

It is doubtful in my view, in consideration of the disclosures routinely made through the
distribution of Notices of Liability and the general thrust of the Freedom of Information Law, that
the Department could justify a denial of access to the information sought.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Susan A. Spector
Seth Cummins