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May 7, 2001

FOIL-AO-12655

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, unless otherwise indicated.

Dear

I have received your letter and the materials attached to it. The correspondence relates to
your unsuccessful efforts in obtaining records from the City of Schenectady that began more than
a year ago.

In a request dated April 24, 2000, you sought the following "non-confidential information"
from the City:

"(1) All policies and procedures of the City of Schenectady Police
Department, including but not limited to:

(i) Standard operating procedures,
(ii) Use of physical force, and
(iii) Treatment of children during the course of a search or
arrest in which the children are not directly involved.

(2) The current contract between the City of Schenectady and the
police officers.

(3) All documents, memoranda, reports and/or other writings
referencing:

(i) Use of force by police officers against
civilians,

(ii) Organizational structure of the Schenectady
Police Department, including, but not limited
to, an organizational chart, and
(iii) The current contract between the City of
Schenectady and police officers, including but
not limited to documents with respect to any
negotiations and/or other communications
relating to a new contract and the terms of that
contract.

(4) All records and other documents reflecting complaints of
police misconduct and/or brutality received by the
Schenectady Police Department from January 1, 1999 to the
present.

(5) All records and other documents reflecting a police
department investigation of the complaints referred to in #4
above.

(6) All records and other documents reflecting discipline imposed
with respect to #4 and #5 above.

(7) All records and other documents reflecting reports of injuries
sustained by persons brought by the Schenectady police to the
Schenectady County Jail from September 1, 1999 to the
present.

(8) All documents reflecting a police department investigation of
the reports referred to in #7, above."

The Chief of Police wrote on June 6 that certain policies and procedures of the Police
Department, as well as the current contract between City police officers and the City would be
disclosed. Nevertheless, as of the date of your letter to this office, it appears that those records have
not been disclosed, and other records that you requested that the Chief indicated would be available
had not yet been made available to you. Further, although the Chief wrote that certain records would
be available in response to particular aspects of your request, the records to be disclosed would not
contain the information sought. Other elements of the request simply have not been addressed.

In this regard, I offer the following comments.

First, since the request was made in April of 2000 and you still have not received any of the
records sought, the City has, in my view, failed to comply with the Freedom of Information Law.
That statute 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..."

Based on the foregoing, an agency must grant access to records, deny access or acknowledge
the receipt of a request within five business days of receipt of a request. When an acknowledgement
is given, it must include an approximate date indicating when it can be anticipated that a request will
be granted or denied.

I note that there is no precise time period within which an agency must grant or deny access
to records. The time needed to do so may be dependent upon the volume of a request, the possibility
that other requests have been made, the necessity to conduct legal research, the search and retrieval
techniques used to locate the records and the like. In short, when an agency acknowledges the
receipt of a request because more than five business days may be needed to grant or deny a request,
so long as it provides an approximate date indicating when the request will be granted or denied, and
that date is reasonable in view of the attendant circumstances, I believe that the agency would be
acting in compliance with law. Notwithstanding the foregoing, in my view, every law must be
implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement
of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the
state and its localities to extend public accountability wherever and whenever feasible."

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 consideration of the passage of time since your request was made and
its receipt acknowledged, I believe that your request was constructively denied and that the denial
could validly have been 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)].

Item 3 of your request was initially rejected on the ground that it is "too broad." In response
to that contention, you rephrased your request and sought:

"1. Incident reports prepared by police officers pertaining to use
of force;

2. An organizational chart and other documents relating to the
organizational structure of the police department; and

3. Documents and memoranda relating to negotiations and
discussions of a future contract."

You informed me by phone that the City has not addressed your attempt to clarify by means
of amending the request. Consequently, I believe that item 3 may be deemed to have been denied.
When a request is characterized as "too broad", the issue typically involves whether the request has
met the requirement that an applicant "reasonably described" the records [see §89(3)]. Because the
City has not indicated that your amended request is too broad, it appears that the request has met that
standard. I note, too, that it has been held that a request reasonably describes the records when an
agency has the ability to locate and identify the records sought [see Konigsberg v. Coughlin, 68
NY2d 245 (1986)].

Second, with respect to the substance of the matter, 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.

With regard to portions of your request that have been denied "under section 50-A", it is
assumed that the Chief was referring to §50-a of the Civil Rights Law. As you are aware, that
provision states, in brief, that personnel records pertaining to police officers that are used to
"evaluate performance toward continued employment or promotion" are confidential and cannot be
disclosed absent either a court order or consent by a police officer who is the subject of the records.
Nevertheless, the Court of Appeals has suggested that §50-a does not serve as a means of
withholding the records sought in their entirety or engaging in a "blanket" denial of access.

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, 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)" [87NY2d 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 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 City 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 be
disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions,
the records must be reviewed by the City 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 another decision, a decision dealing specifically with the City of Schenectady, its Police
Department, and the ability to assert §50-a of the Civil Rights Law as a means of denying access to
records, the Court of Appeals, in similar manner, indicated that certain details might be deleted from
records to accomplish the objectives of §50-a, while providing access to other aspects of the records.
Specifically, the Court stated that:

"...disclosure for uses that would not undermine the protective
legislative objectives could be attained either by a restrictive
formulation of the FOIL request itself, or through redaction by the
agency having custody of the records, tailored in either case so as to
preclude use in personal attacks against an officer which Civil Rights
Law § 50-a was enacted to preclude. (See, Matter of Scott, Sardano
& Pomeranz, supra, 65 N.Y.2d, at 298-299, 491 N.Y.S.2d 289, 480
N.E.2d 1071, see also, Matter of Capital Newspapers v. Burns,
supra,67 N.Y.2d at 565, 505 N.Y.S.2d 576, 496 N.E.2d 665, affg.
109 A.D.2d 92, 93-94, 490 N.Y.S.2d 651). Thus, it may well be
possible for petitioners largely to fulfill their important function of
dissemination of matters of legitimate public interest, i.e., concerning
the appropriateness of the City's response to off-duty misconduct by
members of its police force, without sacrificing the values the
Legislature embraced in enacting Civil Rights Law § 50-a" [Daily
Gazette Company v. City of Schenectady, 93 NY2d 145, 159 (1999)].

Based on the foregoing, names or other identifying details pertaining to police officers who
are subjects of complaints or investigations could be deleted from the records sought pursuant to
§50-a; the remainder, however, would be subject to the Freedom of Information Law. That is not
to suggest that the remainder of the records must be made available, for other elements of the records
might justifiably be withheld.

Aside from consideration of §50-a of the Civil Rights Law, several of the grounds for denial
may be relevant in determining rights of access. The extent to which they may properly be asserted
is dependent on their contents and the effects of disclosure.

For instance, if a complaint includes the identity of the complainant, I believe that identifying
details pertaining to that person may be withheld on the ground that disclosure would constitute "an
unwarranted invasion of personal privacy" [see Freedom of Information Law, §87(2)(b)]. That
provision might also be cited insofar as records identify witnesses, family members related to a
complainant, and perhaps others.

Also potentially relevant is §87(2)(e), which enables 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."

The ability to withhold under the provision quoted above is limited those instances in which the
harmful effects described in subparagraphs (i) through (iv) would arise by means of disclosure.
Further, I would conjecture that many of the records falling within the scope of your request might
not have been compiled for law enforcement, but perhaps for other purposes, such as consideration
of internal rules violations.

Another ground for denial of likely significance, §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.

I point that the Court in Gould, supra, stressed that §87(2)(g) pertains to the exchange of
opinions and ideas between and among government officers and employees, and that it does not
apply to statements made by others, such as witnesses or other persons who are not government
officers or employees. Those kinds of statements, according to the Court, are "far removed from the
type of internal government exchange sought to be protected by the intra-agency exemption..." (id.,
277).

Several aspects of your request would involve intra-agency materials that, in my view, are
clearly public. For example, standard operating procedures would reflect final agency policies and
must be disclosed. Records reflective of the organizational structure of the Police Department would
consist of factual information that must be disclosed. Other policies and procedures that fall within
the scope of your request would also, in my opinion, be public, except to the extent that disclosure
would reveal other than routine criminal investigative techniques or procedures [§87(2)(e)(iv)] or
would if disclosed endanger the life or safety of police officers or others [see §87(2)(f)]. Pertinent
is Fink v. Lefkowitz [47 NY2d 567 (1979)], in which it was found that portions of a law enforcement
manual could be withheld insofar as disclosure would enable individuals to tailor their activities in
a manner that would prevent or diminish effective law enforcement. On the other hand, the Court
also indicated that the agency was required to disclose those portions of the manual that described
the means by which there may be compliance with law. It would appear that the policies and
procedures that you requested would be available in great measure if not in toto.

The Department indicated that it would disclose "PORC Reports" as a means of responding
to items 4 and 5 of your request. You informed me, however, that those reports do not include the
information requested under items 4 and 5. Rights of access to those records would in my opinion
be determined on the basis of an analysis similar to that described in the preceding commentary.

Lastly, one aspect of item 3 involved documents and memoranda relating to negotiations and
discussions of a future contract. As suggested earlier, internal governmental communications
consisting of advice, recommendation or opinions may be withheld under §87(2)(g). Additionally,
§87(2)(c) permits an agency to withhold records insofar as disclosure "would impair present or
imminent...collective bargaining negotiations." From my perspective, to the extent that disclosure
would reveal the City's collective bargaining strategy in relation to present or imminent collective
bargaining negotiations or hamper the ability of the City to engage in negotiations optimal to its
taxpayers, it is likely that §87(2)(c) could be asserted.

In an effort to enhance compliance with the Freedom of Information Law, copies of this
opinion will be forwarded to City officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Albert Jurczynski
Gregory T. Kaczmarek
Carolyn Friello
Michael Brockbank