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  June 4, 2001

FOIL-AO-12702

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 you referred to various issues related to a request for
records from the Town of Yorktown Police Department.

In this regard, I offer the following comments.

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.
Since I am unaware of the contents of all of the records in which you are interested, or the effects
of their disclosure, I cannot offer specific guidance. Nevertheless, the following paragraphs will
review the provisions that may be significant in determining rights of access to the records in
question.

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.

A police department may withhold certain records or specific portions thereof under
applicable exemptions, 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, 277 (1997)]. However, I am unaware of any provision of the
Freedom of Information Law or judicial decision that would require that a denial at the agency level
identify every record withheld or a description of the reason for withholding each document be
given. Such a requirement has been imposed under the federal Freedom of Information Act, which
may involve the preparation of a so-called "Vaughn index" [see Vaughn v. Rosen, 484 F.2D 820
(1973)]. Such an index provides an analysis of documents withheld by an agency as a means of
justifying a denial and insuring that the burden of proof remains on the agency. Again, I am unaware
of any decision involving the New York Freedom of Information Law that requires the preparation
of a similar index.

Since you specifically referred to "DD-5's", in an illustrative case dealing with DD-5's, it was
found that:

"[t]he Motion Court, after reviewing the documents in camera,
declined to dismiss the petition and held that respondent had failed to
meet its burden of proving exemption for the redacted DD-5 follow
up report. The Motion Court held that the exceptions contained in
Public Officers Law §87(2) did not apply in this factual context,
citing Cornell Univ. v. City of N.Y. Police Dept. (153 Ad 2d 515), and
ordered production of the DD-5 with appropriate redaction. On this
record, after a careful review of the documents produced to the
Motion Court, we are satisfied that the materials are not exempt under
the law enforcement exemption (Public Officers Law §87[2][e] or the
intra-agency (Public Officers Law §87[2][g])" [Mitchell v. Slade,173
Ad 2d 226, 227 (1991)].

In my opinion, based upon Mitchell, as suggested in that decision, the "factual context", the specific
contents of the records, and the effects of their disclosure are the factors that must be considered in
determining the extent to which those records may be withheld or, conversely, must be disclosed.

Lastly, you asked that fees for copying be waived. Here I point out that there is nothing in
the Freedom of Information Law that requires that an agency waive fees, irrespective of the status
of an applicant for records. Further, it has been held that an agency may charge its established fees
even though the applicant is an indigent inmate [Whitehead v. Morgenthau, 552 NYS2d 518 (1990)].

I hope that I have been of assistance.

Sincerely,

 

David M. Treacy
Assistant Director

DMT:jm