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February 26, 2001

FOIL-AO-12544

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter in which you raised questions concerning rights of access to
certain records relating to the murder of your daughter. You indicated that the person who killed her
committed suicide following a chase by the police and an exchange of gunfire. Although an incident
report has been made available, you have been denied access to investigative records describing
circumstances that preceded and followed your daughter's death.

In this regard, first, the regulations promulgated by the Committee on Open Government (21
NYCRR part 1401) require that each agency designate one or more person as "records access
officer." The records access officer has the duty of coordinating an agency's response to requests,
and requests should ordinarily be made to that person. In my view, an agency official in receipt of
your request is obliged to respond directly or forward the request to the records access officer.
Nevertheless, if you have not received a response to a request, it is suggested that a new request be
made to the records access officer.

Second, the Freedom of Information Law provides direction concerning the time and manner
in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in writing or furnish a written
acknowledgement of the receipt of such request and a statement of
the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within
five business days, or if an agency delays responding for an unreasonable time after it acknowledges
that a request has been received, a request may, in my opinion, be considered to have been
constructively denied. In such a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part
that:

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing body,
who shall within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the reasons for
further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered
within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v.
McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

Third, 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. Since I am unaware of the contents of the records in which you are interested or the effects
of their disclosure, I cannot offer specific guidance. Nevertheless, the following paragraphs will
review the provisions that may be significant in determining rights of access to the records in
question.

In considering the records falling within the scope of your request, relevant is a decision by
the Court of Appeals, the state's highest court, concerning "complaint follow up reports" prepared
by police officers and police officers' memo books in which it was held that a denial of access based
on their characterization as "intra-agency materials" would be inappropriate.

The provision at issue, §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" [Gould, Scott and DeFelice v. New York City Police
Department,89 NY2d 267. 276-277 (1996); emphasis added by the
Court].

Based on the foregoing, the police department could not claim that the records sought 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 may be pertinent in the context of your inquiry.

For instance, 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). If the events which you referred ended with a suicide by
the murderer of your daughter, it would appear unlikely that §87 (2)(e) would serve as a basis for a
denial of access to much of the information in which you are interested.

Also relevant is the first ground for denial, §87(2)(a), which pertains to records that "are
specifically exempted from disclosure by state or federal statute". One such statute deals with
recordings or transcripts of 911 calls. Section 308(4) of the County Law states that:

"Records, in whatever form they may be kept, of calls made to a
municipality's E911 system shall not be made available to or obtained
by any entity or person, other than that municipality's public safety
agency, another government agency or body, or a private entity or a
person providing medical, ambulance or other emergency services,
and shall not be utilized for any commercial purpose other than the
provision of emergency services."

In my view, "records...of calls" means either a recording or a transcript of the communication
between a person making a 911 emergency call, and the employee who receives the call. I do not
believe that §308 (4) can validly be construed to mean records regarding or relating to a 911 call.
If that were so, innumerable police and fire reports, including arrest reports and police blotter entries,
would be exempt from disclosure. In short, I believe that §308(4) pertains to and confers
confidentiality only with respect to the recording or transcript of a 911 call.

Lastly, as indicated earlier, if records are withheld following both an initial request and an
appeal, the person denied access may seek judicial review of the denial by initiating a proceeding
under Article 78 of the Civil Practice Law and Rules. In such a proceeding, the agency has the
burden of defending secrecy, and the Court of Appeals has held 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)"( Gould v. New York City Police Department, 89 NY 2d
267, 275 (1996)].

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 agency contended that complaint follow up reports, also known as "DD5's", 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). The
Court then 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, directing 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.).

 

 

 

 

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Charles Brown