NY.gov Portal State Agency Listing

 

March 16, 2001

FOIL-AO-12579

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 and the materials attached to it. You have sought assistance in
relation to a denial of access to records pertaining to the Kendall Francois murder investigation by
the Office of the Dutchess County District Attorney

The records sought, which were apparently withheld in their entirety, include crime scene
reports and photographs, investigators' interviews with the defendant and his family, and school and
psychological records. It is your view that analogous records are, in many instances, routinely
disclosed. Further, due to the publicity associated with the crimes committed and the ensuing
proceedings, as well as the nature of the disclosures that have already been made, you contend that
the denial of access is overly broad.

In this regard, perhaps most importantly, 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
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 [89 NY2d 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 Department contended that 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 requests. 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), and 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, stating 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 vl. 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.).

In the context of your request, rather than citing a single exception as a basis for a blanket
denial of access to the records sought as in Gould, the Office of the District Attorney has engaged
in a blanket denial citing different provisions in a manner which, in my view, is equally inconsistent
with the language of the law and judicial interpretations. I am not suggesting that the records sought
must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several
decisions, the records must be reviewed by that agency for the purpose of identifying those portions
of the records that might fall within the scope of one or more of the grounds for denial of access.
As the Court stated later in the decision: "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" (id., 277; emphasis added).

Several provisions were cited to justify the denial of your request. Section 87(2)(b), which
enables an agency to withhold records insofar as disclosure would constitute "an unwarranted
invasion of personal privacy", was cited with respect to each category of the records sought. From
my perspective, as the nature and amount of information disclosed to the public relating to a criminal
investigation or proceeding increases, the extent to which the exception concerning privacy
decreases.

By means of example, in a decision concerning a request for records maintained by the office
of a district attorney that would ordinarily be exempted from disclosure under the Freedom of
Information Law, it was held that "once the statements have been used in open court, they have lost
their cloak of confidentiality and are available for inspection by a member of the public" [see Moore
v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon that decision, records introduced into
evidence or disclosed during a public judicial proceeding must be disclosed. If, for instance, certain
crime scene photos have been disclosed, as evidence or otherwise, it is questionable or perhaps
unlikely that others involving the same locations or persons would reveal more, in terms of an
invasion of personal privacy, than those previously disclosed; the magnitude of any additional
invasion of privacy would not likely be significant in view of the disclosures already made.
Although there was no trial in the Francois case, the events surrounding the case generated a great
deal of attention in both print and broadcast media, not only in Poughkeepsie, but, due the nature of
the crimes, nationally as well. In short, substantial disclosures about the defendant, his family, the
victims and the community were made and disseminated over a lengthy period of time. Again, in
view of those disclosures, I believe that it would be difficult to justify a denial of access to
significant portions of the records sought based on a claim that disclosure would result in an
unwarranted invasion of privacy.

I would agree that the Office of the District Attorney may without records in accordance with
the grounds for denial. However, the Court of Appeals has pointed out that the Freedom of
Information Law is permissive; an agency may choose to disclose, notwithstanding its ability to deny
access to records [Capital Newspapers v. Burns, 109 AD2d 92, aff'd 67 NY2d 562 (1986)].

Although it has been found that the details regarding one's education may be withheld as an
unwarranted invasion of personal privacy, it has been held that one's general educational background
should be disclosed [Ruberti, Girvin & Ferlazzo v. NYS Division of State Police, 641 NYS2d411,
218 AD2d 494 (1996)]. Similarly, psychological records held by the District Attorney may, in my
view, be withheld under §§87(2)(b) and 89(2)(b). Nevertheless, in recognition of the growing need
to attempt to stop crimes analogous to those committed by Francois before they occur, it may be in
the public interest, as well as a positive law enforcement function, to disclose details concerning
Francois' life. Consideration of patterns of behavior and the development of data about behavior
may enable school and law enforcement officials to recognize an inclination or proclivity to commit
violent or antisocial acts, and preventive measures might be taken to prevent those acts from
occurring.

In short, while there may be a basis for withholding information of a personal nature, in
consideration of the publicity generated by the case and the associated disclosures, as well as the
potentially beneficial aspects of disclosure, the Office of District Attorney could choose to disclose
records in the public interest, even though the authority to deny access may exist.

Other provisions cited in the denial are subparagraphs (iii) and (iv) of §87(2)(e). They
indicate that an agency may withhold records "compiled for law enforcement purposes" to the extent
that disclosure would:

"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."

Although I am unaware of the contents of the records withheld under the provisions quoted
above, as is so in conjunction with other exceptions to rights of access, they, too have been construed
in a manner that would maximize disclosure while enabling agencies to deny access to prevent some
sort of harm or impediment to law enforcement functions.

For example, to qualify as a confidential source, it has been held that an individual must
have been given a promise of confidentiality. In a case involving records maintained by the New
York City Police Department relating to a sexual assault, it was held that:

"NYPD has failed to meet its burden to establish that the material
sought is exempt from disclosure. While NYPD has invoked a
number of exemptions with might justify its failure to supply the
requested information, it has failed to specify with particularity the
basis for its refusal...

"As to the concern for the privacy of the witnesses to the assault,
NYPD has not alleged that anyone was promised confidentiality in
exchange for his cooperation in the investigation so as to qualify as
a 'confidential source' within the meaning of the statute (Public
Officers Law §87[2][e][iii]" [Cornell University v. City of New York
Police Department, 153 AD 2d 515, 517 (1989); motion for leave to
appeal denied, 72 NY 2d 707 (1990).

The leading decision concerning §87(2)(e)(iv), Fink v. Lefkowitz, 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).

From my perspective, 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.
However, insofar as those potentially harmful effects would not arise by means of disclosure,
§87(2)(e)(iv) would not serve as a basis for a denial or access.

The remaining ground for denial cited by the Office of the District Attorney, §87(2)(g),
authorizes 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.

The Court of Appeals in Gould, supra, analyzed the provision quoted above and found 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.

In sum, in consideration of the preceding commentary, I believe that the denial of your
request was overbroad and that various aspects of the records sought must be disclosed. Further, it
is reiterated that the Office of the District Attorney may disclose records, even though there may be
authority to deny access.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. William V. Grady
William J. O'Neill