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March 27, 2001

FOIL-AO-12605

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 correspondence pertaining to a denial of your request for records
concerning an arrest by the Village of Cazenovia Police Department.

You sought "[r]ecords related to the Dec. 13 assault arrest entry in the Cazenovia blotter.
This includes, but is not limited to, the defendant's name, date of birth, address, charges, any victim
names and any reports on the circumstances surrounding the request." The Village initially denied
access to the records, including the name of the person arrested, citing §87(2)(e)(i) and (iii) of the
Freedom of Information Law. The Village Board of Trustees sustained the denial of your request
following your appeal.

In this regard, first and 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 state's highest court, 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 Police Department contended that complaint follow up reports 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), 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 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.).

In the context of your request, the Village has engaged in a blanket denial of access in a
manner which, in my view, is equally inappropriate. I am not suggesting that the records sought
must necessarily be disclosed in full. Rather, based on the direction given by the Court of Appeals
in several decisions, the records must be reviewed 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).

In short, I believe that the basis for the denial of your appeal was incomplete and inadequate,
and that the blanket denial of the request was inconsistent with law.

Second, from my perspective, unless an arrest or booking record has been sealed pursuant
to §160.50 of the Criminal Procedure Law, it must be disclosed. Under that statute, when criminal
charges have been dismissed in favor of an accused, the records relating to the arrest ordinarily are
sealed. In those instances, the records would be exempted from disclosure by statute [see Freedom
of Information Law, §87(2)(a)].

Although arrest records are not specifically mentioned in the current Freedom of Information
Law, the original Law granted access to "police blotters and booking records" [see original Law,
§88(1)(f)]. In my opinion, even though reference to those records is not made in the current statute,
I believe that such records continue to be available, for the present law was clearly intended to
broaden rather than restrict rights of access. Moreover, it was held by the Court of Appeals, several
years ago that, unless sealed under §160.50 of the Criminal Procedure Law, records of the arresting
agency identifying those arrested must be disclosed [see Johnson Newspapers v. Stainkamp, 61 NY
2d 958 (1984)].

With respect to the names of complainants or victims, rights of access, or conversely, the
ability to deny access, would in opinion be dependent on attendant facts. It is emphasized, however,
that whether a complainant prefers to authorize or preclude disclosure is irrelevant. In a case in
which a law enforcement agency permitted persons reporting incidents to indicate on a form their
preference concerning the agency's disclosure of the incident to the news media, the Appellate
Division found that, as a matter of law, the agency could not withhold the record based upon the
"preference" of the person who reported the offense. Specifically, in Johnson Newspaper
Corporation v. Call, Genesee County Sheriff, 115 AD 2d 335 (1985), it was found that:

"There is no question that the 'releasable copies' of reports of offenses
prepared and maintained by the Genesee County Sheriff's office on
the forms currently in use are governmental records under the
provisions of the Freedom of Information Law (Public Officers Law
art 6) subject, however, to the provisions establishing exemptions
(see, Public Officers Law section 87[2]). We reject the contrary
contention of respondents and declare that disclosure of a 'releasable
copy' of an offense report may not be denied, as a matter of law,
pursuant to Public Officers Law section 87(2)(b) as constituting an
'unwarranted invasion of personal privacy' solely because the person
reporting the offense initials a box on the form indicating his
preference that 'the incident not be released to the media, except for
police investigative purposes or following arrest'."

Moreover, although the issue did not involve law enforcement, the Court of Appeals has held that
a request for or a promise of confidentiality is all but meaningless; unless one or more of the grounds
for denial appearing in the Freedom of Information Law may appropriately be asserted, the record
sought must be made available [see Washington Post v. New York State Insurance Department, 61
NY 2d 557, 567 (1984)]. This is not to suggest that records or portions of records might not
justifiably be withheld, but rather that a claim or promise of confidentiality in my opinion is
irrelevant to an analysis of rights of access to records.

In some situations, a denial of access to the name of a complainant or victim may be
appropriate. Under §50-b of the Civil Rights Law, police and other public officers are prohibited
from disclosing the identity of the victim of a sex offense. If a complainant is in some way
associated with organized crime or is a confidential source, that person's identity could likely be
withheld under §87(2)(f). That provision permits an agency to withhold records to the extent that
disclosure would "endanger the life or safety of any person." The same provision might apply when
the victim of a crime is a senior citizen who lives alone. However, in many instances, the name of
a complainant involved in a crime must be disclosed, and a general policy of withholding names of
complainants or victims would, in my opinion, be inconsistent with law.

Third, the provision upon which the Village relied in denying access, §87(2)(e), permits an
agency to withhold records that are:

"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."

The ability to deny access to records is dependent on the effects of disclosure. Only to the extent that
the harmful effects described in subparagraphs (i) through (iv) would arise may §87(2)(e) be
asserted.

In the context of criminal proceedings, a variety of information is routinely disclosed. An
arraignment, for example, occurs during a public judicial proceeding, and information equivalent to
that disclosed during an arraignment must, in my view, be disclosed by a police department or
prosecutor. It has been held that once information has been disclosed during a public judicial
proceeding, the grounds for denying access under the Freedom of Information Law no longer apply
[see Moore v. Santucci, 151 AD2d 677 (1989)]. Further, when a person is arrested, taken into
custody and is committed to a county jail, a record must be maintained at the jail that includes
numerous details, all of which must be disclosed. Specifically, §500-f of the Correction Law, which
pertains to county jails, states that:

"Each keeper shall keep a daily record, to be provided at the expense
of the county, of the commitments and discharges of all prisoners
delivered to his charge, which shall contain the date of entrance,
name, offense, term of sentence, fine, age, sex, place of birth, color,
social relations, education, secular and religious, for what any by
whom committed, how and when discharged, trade or occupation,
whether so employed when arrested, number of previous convictions.
The daily record shall be a public record, and shall be kept
permanently in the office of the keeper."

In sum, I believe that the blanket denial of your request was inconsistent with law and that
the identity of a person arrested, as well as other details, must be disclosed.

In order to enhance compliance with and understanding of the Freedom of Information Law,
a copy of this opinion will be forwarded to the Board of Trustees.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Trustees