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June 19, 2001

FOIL-AO-12741

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

As you are aware, I have received your letter and the materials relating to it concerning rights
of access to "the Buffalo Police Department's 911 incident reports." According to your letter, until
recently, the reports had been made available to members of the news media and the public, and you
enclosed a copy of a printout that you characterized as a "typical 911 incident report." The report
includes the date and time of an incident, a street address, what appears to be a complaint number,
and a brief description of the nature of a complaint, i.e., "suspicious prsn", "burg in prog", "neighbor
dispt", "criminal misch", "narcotics", etc. The report, which is a computer printout containing
reference to approximately fifty incidents, includes no names.

In response to a recent request for "an electronic copy" of a record containing the same items
of information as those indicated in the "typical" incident report, the City's Assistant Corporation
Counsel, Susan P. Wheatley, denied access for the following reasons:

"1. Public Officers Law §87(2)(a) permits denial of access to records
that are specifically exempted from disclosure by state or federal law.
Records of calls to a municipality's 911 system are specifically
exempted from disclosure under (New York) County Law §308(4).
In addition, portions of the records would be exempt from disclosure
under (New York) Civil Rights Law 50-b(1), which protects that
identity, and any information that may tend to identify, sex offense
victims.

"2. Disclosure of portions of the records, and specifically those
falling within the protection of Civil Rights Law 50-b(1), would
constitute an unwarranted invasion of personal privacy under Public
Officers Law §§87(2)(b) and 89(2)(b)(iv) and (v). Due to the
massive number of records that you are requesting and their format,
review of the records to identify specifically protected entries and
redaction of personal identifying information contained therein would
be impossible or impractical.

"3. The requested records were compiled for law enforcement
purposes and disclosure of the records, or portions of them would
interfere with law enforcement investigations or judicial proceedings,
identify a confidential source or disclose confidential information
relating to a criminal investigation, and/or endanger the life or safety
of any person. See Public Officers Law §87(2)(e)(i) and (ii) and (f).
The records you have requested could identify witnesses to, or
victims of, criminal activity. Again, in view of the number of the
records you have requested and their format, review and redaction
would be impossible or impractical.

"In addition to the above reasons for denying your request, the City
of Buffalo Police Department is still investigating whether the
records you have requested are available in the form or format you
specified."

From my perspective, the denial of the request was inconsistent with law. In this regard, I
offer the following comments.

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 [87 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 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,the Department has engaged in a blanket denial of access in
a manner which, in my view, is equally inappropriate.

Assuming that a 911 call is made through an "enhanced" system, a so-called "E-911 system,
the record of that call would be confidential. In an E-911 system, in addition to the information
offered orally by the caller, the recipient of the call also receives the phone number of the instrument
used to make the call and the location from which the call was made. Relevant in that circumstance
is the first ground for denial, §87(2)(a), which pertains to records that "are specifically exempted
from disclosure by state or federal statute." One such statute is §308(4) of the County Law, which
states that:

"Records, in whatever form they may be kept, of calls made to a
municipality's E911 system shall not be made available to or obtained
by any entity or person, other than that municipality's public safety
agency, another government agency or body, or a private entity or a
person providing medical, ambulance or other emergency services,
and shall not be utilized for any commercial purpose other than the
provision of emergency services."

In my view, "records...of calls" means either a recording or a transcript of the communication
between a person making a 911 emergency call, and the employee who receives the call. I do not
believe that §308(4) can validly be construed to mean records regarding or relating to a 911 call.
If that were so, innumerable police and fire reports, including arrest reports and police blotter
entries, would be exempt from disclosure in their entirety. In short, I do not believe that a report
analogous to that attached to your letter would be subject to §308 of the County Law.

Ms. Wheatley also referred to §50-b of the Civil Rights Law and §§87(2)(b) and 89(2)(b)
of the Freedom of Information Law as grounds for the denial of access. Those provisions would,
in my view, rarely if ever be pertinent in relation to the kinds of reports at issue. The former
prohibits governmental entities from disclosing records that would identify the victim of a sex
offense; the latter deal with the ability of an agency to withhold records to the extent that disclosure
would constitute "an unwarranted invasion of personal privacy." On the "typical" report that you
enclosed, which, again, makes reference to approximately fifty incidents, no item has been deleted,
and none would have dealt with a sex offense. The report contains no names and appears to relate
to events that occurred at a multiple dwelling over a period of nearly two years. When a report
relates to a dwelling in which there are many tenants, a description of a complaint as a sex offense
or "domestic trbl" likely would not identify the victim of such an offense or those involved in a
domestic dispute. Absent personally identifiable details, I do not believe that the City may justify
a denial of access on the basis of either §50-b of the Civil Rights Law or the provisions pertaining
to personal privacy appearing in the Freedom of Information Law.

When §50-b is pertinent, a record identifying the victim of a sex offense would be exempted
from disclosure pursuant to §87(2)(a) of the Freedom of Information Law. Nevertheless, even if the
location of the commission of the crime is disclosed, it may be impossible to identify the victim with
any degree of certainty or accuracy. A victim of a sex offense that occurred at a particular location
might have been a resident, a friend, a relative, a cleaning person, a meter reader or any other person
performing some sort of function or providing a service at that location. As suggested above, if the
event occurred at a multiple dwelling or commercial establishment, the ability to identify a victim
would, in my view, be remote.

With respect to references to domestic disputes ("domestic trbl"), while the details of an
event or the names of those involved might justifiably withheld to protect privacy, the fact that an
event occurred involving the presence of a police officer would, in my view, be public. In short,
the presence of a police vehicle at a particular time and location due to a call from a complainant,
a family member or a neighbor is not secret, and a record that makes reference to the event would,
in my opinion, be public. Again, in the case of a printout involving a multiple dwelling, the mere
reference to a domestic dispute would not likely enable the public to identify those involved.

The printout that you enclosed is, in my view, essentially the equivalent of a police blotter.
Although there is no legal definition of the phrase "police blotter", based on custom, it has been held
that a police blotter is typically a log or diary in which events recorded by or to a police department
are recorded. Assuming that a blotter includes no names or investigative information, but merely
consists of a summary of events or occurrences, such a record has been found to be accessible under
the Freedom of Information Law [see Sheehan v. City of Binghamton, 59 AD2d 808 (1977).
Reports that indicate that an event occurred, such as those at issue, would appear to be analogous
to the disclosure of the contents of the traditional police blotter and, therefore, should be disclosed.

Ms. Wheatley also relied on §87(2)(e)(i) and (ii) and (f) of the Freedom of Information Law
as grounds for denial of access. Section 87(2)(e) provides in relevant part that an agency may
withhold "records compiled for law enforcement purposes" when disclosure would "i. interfere with
law enforcement investigations or judicial proceedings; ii. deprive a person of a right to a fair trial
or impartial adjudication..." Section 87(2)(f) authorizes an agency to deny access to records insofar
as disclosure "would endanger the life or safety of any person." It is reiterated that the reports do
not include names, and as in the case of the traditional police blotter, they contain no information
concerning the nature or course of an investigation. On the contrary, they merely indicate that
certain events may have occurred at particular times and places. As stated earlier, the state's highest
court has determined on several occasions that the exceptions to rights of access "are to be narrowly
construed, with the burden resting on the agency to demonstrate that the requested material indeed
qualifies for exemption" (Gould, Hanig, Fink, supra), and that there must be "particularized and
specific justification for not disclosing requested documents" (id.). In my view, the possibility that
the harmful effects described in §§87(2)(e) and (f) would arise by means of disclosure is conjectural
and remote, and that possibility, without more, would not justify a denial of access.

Lastly, Ms. Wheatley indicated that the Department was "investigating whether the
records...are available in the form and format you specified", a "text or database format." In this
regard, 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. 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.

I note, too, that 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)]. Further, 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)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Michael B. Risman
Susan P. Wheatley
Jim Heaney