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FOIL-AO-12565
March 13, 2001

 

 

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 in which, in your capacity as counsel to the Genesee Valley
Chapter of the New York Civil Liberties Union, you sought an advisory opinion concerning "the
public's right of access to certain information collected by the Rochester Police Department about
what it calls 'non-custodial police interviews and observations,' i.e., stops of individuals that do not
result in an arrest."

You indicated that information is collected relating to stops that do not result in arrests in
Field Interview Forms (FIF's), and that the Police Department, through General Order 570,
describes the policy and procedure to be followed in completing the forms. The Order also indicates
that the FIF's are scanned into the Department's Report Image System and entered into a database.
The FIF, a copy which you enclosed, includes some 37 "boxes", and 36 involve purely factual
information relating to the person stopped. Box 37, according to the Order, involves a narrative in
which an officer may include "any information related to the person interviewed or the premises
observed, any information leading up to or causing the interview and any information the member
feels is pertinent to the interview or observation that is not already recorded in other areas of the
FIF." Your interest is in boxes 10 and 17, which respectively contain information regarding race
and ethnicity, and in box 37. You specified in correspondence that you do not want or expect to
receive any information contained in the forms that could identify a person stopped.

The City denied your request, and the Mayor wrote that:

"The determination that the records should not be released is based
on the information contained in these records and the sheer number
of these records, which would make any necessary review and
redaction of these records by members of the Rochester Police
Department impossible to conduct. For the year 1999 there were
26,141 filed interview forms completed by members of the Rochester
Police Department. There were also over 5,700 crime reports
involving disorderly conduct, harassment and obstruction of
governmental administration. There are several legal concerns
related to the release of such records in an unredacted form. Many
of the crime reports involving the stated offenses will be sealed
pursuant to the Criminal Procedure Law. All of these records contain
names, addresses, dates of birth, telephone numbers, and other
information of a personal nature, release of which would result in an
unwarranted invasion of personal privacy. This is especially true for
field interview forms which often contain information which has not
warranted criminal charges but which would reflect negatively upon
a person if released. These forms also often contain information of
an intelligence nature that proves very useful in criminal
investigations. This information is maintained in a confidential
manner and release could impede a law enforcement investigation.
The records would have to be reviewed for each of these concerns
and redactions made as needed prior to any release. The review
clearly would not be feasible for the number of records that would be
involved in a request like the one you have made."

In this regard, I offer the following comments.

First, 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. It is emphasized that the introductory language of 87(2) refers to the ability to withhold
"records or portions thereof" that fall within the grounds for denial that follow. The highlighted
phrase clearly indicates that there may be situations in which a single record may include both
accessible and deniable information, and that an agency is required to review records in their entirety
to determine which portions, if any, may be justifiably withheld.

Second, since you wrote that you do not want those portions of the records that identify
individuals, the concerns expressed by Mayor Johnson concerning the protection of personal privacy
or interference with an investigation would not, in my view, be pertinent. In short, absent personally
identifying details or other data collected and included in the FIF's, I believe that the boxes
indicating race and ethnicity would be accessible, for none of the grounds for denial would be
applicable.

Box 37, the narrative that may be added by an officer, may apparently consist of a variety
of information. Relevant to that entry is 87(2)(g) of the Freedom of Information Law, which
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 a discussion dealing with "complaint follow-up reports" prepared by New York City
police officers [Gould v. New York City Police Department, 89 NY2d 267 (1996)], the Court of
Appeals rejected the Department's contention that the reports could be withheld in their entirety
under 87(2)(g). Specifically, 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 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 the
content of records.

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).

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.

I am unaware of the frequency of narrative comments being added to FIF's in Box 37 or of
the nature of the comments. Nevertheless, the analysis in Gould may be pertinent in determining
rights of access to those entries.

Third, based on judicial decisions, the volume of a request is largely irrelevant. Assuming
that a request "reasonably describes" the records as required by 89(3) of the Freedom of
Information Law, i.e., that an agency can locate and identify the records sought, it has been held that
a request cannot be rejected due to its breadth [Konigsberg v. Coughlin, 68 NY2d 245 (1986)]. As
stated by the Court of Appeals:

"respondents have failed to supply any proof whatsoever as to the
nature - or even the existence - of their indexing system: whether the
Department's files were indexed in a manner that would enable the
identification and location of documents in their possession (cf.
National Cable Tel. Assn. v Federal Communications Commn., 479
F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability
under Federal Freedom of Information Act, 5 USC section 552 (a)
(3), may be presented where agency's indexing system was such that
'the requested documents could not be identified by retracing a path
already trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of the
agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court
of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing
or record-keeping system.

The Mayor indicated that thousands of FIF's are prepared annually. Nevertheless, according
to General Order 570, the Crime Analysis Section of the Department is required to "[m]aintain a
central file of FIF information" and "enter information into the CLUES database for access..."
Based on the foregoing, it appears that paper copies of FIF's are kept in a single location, and that
the contents of the FIF's are stored electronically in a database. That being so, again, I believe that
your request, despite the volume of material, has met the requirement of "reasonably describing"
the records and could not be rejected due to its breadth. I note that it has been held that denials of
access to records based on an agency's contention that it had insufficient staff cannot be sustained,
for a denial on that basis would "thwart the very purpose of the Freedom of Information Law
[United Federation of Teachers v. New York City Health and Hospitals Corporation, 428 NYS2d
823 (1980)]. Moreover, the Court of Appeals, recognizing that implementation of the Freedom of
Information Law may be burdensome, has stated that "Meeting the public's legitimate rights of
access concerning government is fulfillment of a governmental obligation, not the gift of, or waste
of, public funds" [Doolan v. BOCES, 48 NY2d 341, 347 (1979)].

Next, having reviewed the FIF, boxes 10 and 17 always include information regarding race
and ethnicity. Absent personally identifying details, again, I believe that boxes 10 and 17 must be
disclosed. If a disclosure made on paper, i.e., via inspection or photocopying, it has been suggested
in similar circumstances that a stencil be developed that covers the form, with the exception of areas
cut out enabling an applicant to view or obtain copies of boxes 10 and 17.

With respect to box 37, as suggested earlier, the contents of the narrative determine the
extent to which it would be available or deniable. In view of time and effort needed to review box
37 on thousands of FIF's, it is suggested that you might consider its value and perhaps amend the
request.

When a request is made for information stored electronically, others issues are pertinent. As
you may be aware, the Freedom of Information Law pertains to agency records, and 86(4) of the
Law defines the term "record" 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 upon the language quoted above, if information is maintained in some physical form, it would
constitute a "record" subject to rights of access conferred by the Law. Further, the definition of
"record" includes specific reference to computer tapes and discs, and it was held in the early days
of the Freedom of Information Law that "[i]nformation is increasingly being stored in computers
and access to such data should not be restricted merely because it is not in printed form" [Babigian
v. Evans, 427 NYS 2d 688, 691 (1980); aff'd 97 AD 2d 992 (1983); see also, Szikszay v. Buelow,
436 NYS 2d 558 (1981)].

When information is maintained electronically, it has been advised that if the information
sought is available under the Freedom of Information Law and may be retrieved by means of
existing computer programs, an agency is required to disclose the information. In that kind of
situation, the agency would merely be retrieving data that it has the capacity to retrieve. Disclosure
may be accomplished either by printing out the data on paper or perhaps by duplicating the data on
another storage mechanism, such as a computer tape or disk. On the other hand, if information
sought can be retrieved from a computer or other storage medium only by means of new
programming or the alteration of existing programs, those steps would be the equivalent of creating
a new record. As stated earlier, since 89(3) does not require an agency to create a record, an
agency is not required to reprogram or develop new programs to retrieve information that would
otherwise be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218 (1991)].

Often information stored electronically can be extracted by means of a few keystrokes on
a keyboard. While some have contended that those kinds of minimal steps involve programming
or reprogramming, and, therefore, creating a new record, so narrow a construction would tend to
defeat the purposes of the Freedom of Information Law, particularly as information is increasingly
being stored electronically. If electronic information can be extracted or generated with reasonable
effort, if that effort involves less time and cost to the agency than engaging in manual deletions, it
would seem that an agency should follow the more reasonable and less costly and labor intensive
course of action.

Illustrative of that principle is a case in which an applicant sought a database in a particular
format, and even though the agency had the ability to generate the information in that format, it
refused to make the database available in the format requested and offered to make available a
printout. In holding that the agency was required to make the data available in the format requested
and upon payment of the actual cost of reproduction, the Court in Brownstone Publishers, Inc. v.
New York City Department of Buildings unanimously held that:

"Public Officers Law [section] 87(2) provides that, 'Each agency
shall...make available for public inspection and copying all records...'
Section 86(4) includes in its definition of 'record', computer tapes or
discs. The policy underlying the FOIL is 'to insure maximum public
access to government records' (Matter of Scott, Sardano & Pomerantz
v. Records Access Officer, 65 N.Y.2d 294, 296-297, 491 N.Y.S.2d
289, 480 N.E.2d 1071). Under the circumstances presented herein,
it is clear that both the statute and its underlying policy require that
the DOB comply with Brownstone's reasonable request to have the
information, presently maintained in computer language, transferred
onto computer tapes" [166 Ad 2d, 294, 295 (1990)].

Additionally, in a more recent decision that cited Brownstone, it was held that: "[a]n agency which
maintains in a computer format information sought by a F.O.I.L. request may be compelled to
comply with the request to transfer information to computer disks or tape" (Samuel v. Mace,
Supreme Court, Monroe County, December 11, 1992).

In short, assuming that the data sought is available under the Freedom of Information Law,
that it can be made available in the format in which an applicant requests it, and that the applicant
is willing to pay the requisite fee, I believe that an agency would be obliged to do so. If the City
cannot reproduce the data on a compact disc, it may nonetheless be required to reproduce it in/on
a different medium.

Further, I believe that there is clearly a distinction between extracting information and
creating it. If an applicant knows that an agency's database consists of 10 items or "fields", asks
for items 1, 3 and 5, but the agency has never produced that combination of data, would it be
"creating" a new record? The answer is dependent on the nature of the agency's existing
computer programs; if the agency has the ability to retrieve or extract those items by means of its
existing programs, it would not be creating a new record; it would merely be retrieving what it
has the ability to retrieve in conjunction with its electronic filing system. An apt analogy may be
to a filing cabinet in which files are stored alphabetically and an applicant seeks items "A", "L"
and "X". Although the agency may never have retrieved that combination of files in the past, it
has the ability to do so, because the request was made in a manner applicable to the agency's
filing system.

In the context of your inquiry, if the City has the ability to generate the data of your
interest regarding race and ethnicity, if it has the capacity to segregate that data from items that
need not be disclosed, and if you are willing to pay the actual cost of reproduction as envisioned
by 87(1)(b)(iii) of the Freedom of Information Law, I believe that it would be obliged to do so.

If the contents of boxes 10 and 17 cannot be generated electronically, I believe that the
City would have two options. First, it could engage in the laborious task of either deleting
information by hand from the FIF's, leaving as available only the items sought. Or second, it
might develop a means of electronically segregating those items from the remainder of the form
in order to make them available to you. Although the City would not be required to follow that
course of action (see Guerrier, supra), it may be less burdensome and less costly than making
manual deletions.

In an effort to encourage a mutually satisfactory accommodation, copies of this response
will be sent to Mayor Johnson, Chief Duffy, and to Linda Kingsley, Corporation Counsel.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. William A. Johnson, Jr., Mayor
Robert J. Duffy, Chief of Police
Linda S. Kingsley, Corporation Counsel
Hon. Wade S. Norwood