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March 8, 2001

FOIL-AO-12561

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 of January 29 relating to your unsuccessful efforts in obtaining
records from the New York City Department of Corrections.

The records sought relate to an incident that occurred at the Rikers Island Correctional
Facility in 1995, and you represent a former inmate who sustained personal injuries while
incarcerated at Rikers. They include:

"1. the overall directive on search procedures of inmates at the
Rikers' Island Facility;

2. the specially designed program for the North Infirmary Command
at the Rikers' Island Facility;

3. directions governing those persons designated ‘assaultive'
prisoners; and

4. the multi-paged institutional orders devised to govern the
movements of inmates Tyree Garland and Benjamin Serrano for
recreation, visits, court appearances, searching out of their cell, etc.
which were generated by the security deputy warden and posted
where the inmates were housed and given to each tour commander."

In this regard, first , in view of the delay that you have encountered, it is noted at the outset
that 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)].

Second, the Freedom of Information law pertains to existing records and §89 (3) states in part
that an agency is not required to create a record in response to a request. Therefore, insofar as the
information sought does not exist in the form of a record or records, the Department would not be
obliged to prepare new records to satisfy your request.

Third, to the extent that your request involves existing records, 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. In consideration of your request, several of the
grounds for denial may be pertinent to an analysis of rights of access. 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 expressed its general view of the intent of the Freedom of Information
Law in Gould v. New York City Police Department [87 NY 2d 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,
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). 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.).

It is unclear whether you represent of either the inmate named. If one or both are not your
clients, §87 (2)(b) may be relevant, for it authorizes an agency to withhold records insofar as
disclosure would constitute an "unwarranted invasion of personal privacy." I am unaware of the
contents of the records pertaining to those individuals. However, those portions containing intimate
personal information could likely be withheld pursuant to §87(2)(b). Others, such as reference to
court appearances, would likely be accessible.

There is no question but that the records sought constitute intra-agency materials that fall
within the scope of §87(2)(g). However, due to its structure, that provision frequently requires
substantial disclosure. Specifically, §87(2)(g) states that an agency may 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 basis for denial is
applicable. 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. It would appear that
the records sought would consist of instructions to staff that affect the public or an agency's policy.
Therefore, I believe that they would be available, unless a different basis for denial could be asserted.

A third provision of potential significance 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 of 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."

Perhaps most relevant in the context of your request would be §87(2)(e)(iv). The leading
decision concerning that provision is Fink v. Lefkowitz, which involved access to a manual prepared
by a special prosecutor that investigated nursing homes in which the Court of Appeals held that:

"The purpose of this exemption is obvious. Effective law
enforcement demands that violators of the law not be apprised the
nonroutine procedures by which an agency obtains its information
(see Frankel v. Securities & Exch. Comm., 460 F2d 813, 817, cert
den 409 US 889). However beneficial its thrust, 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.

"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).

As the Court of Appeals has suggested, to the extent that the records in question include
descriptions of investigative techniques which if disclosed would enable potential lawbreakers to
evade detection or endanger the lives or safety of law enforcement personnel or others [see also,
Freedom of Information Law, §87(2)(f)], a denial of access would be appropriate. I would
conjecture, however, that not all of the techniques or procedures contained in the records sought
could be characterized as "non-routine", and that it is unlikely that disclosure of each aspect of the
records would result in the harmful effects of disclosure described above.

The other provision of possible significance as a basis for denial is §87(2)(f). Again, that
provision permits an agency to withhold records insofar as disclosure "would endanger the life or
safety of any person." As suggested with respect to the other exceptions, I believe that the
Department is required to review the documentation at issue to determine which portions fall within
this or the other exceptions.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
RJF:tt

cc: Thomas Antenen, Records Access Officer