NY.gov Portal State Agency Listing

 

June 20, 2001

FOIL-AO-12748

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 sought assistance in relation to a request for records
that was denied by the New York City Police Department.

By way of background, you indicated that your employer, K Video Productions, Inc., is in
the process of preparing a "feature length documentary about the social and political changes in New
York City in the past decade." In an effort to view and perhaps obtain video materials useful in the
documentary, you contacted the New York Police Academy Library in September and were granted
access to the Library, at which time you "saw three Police Academy Instructional videos" that would
be useful in producing the documentary. Although you wrote that the tapes "are fairly accessible to
the public for viewing at the Police Academy Library", the librarian indicated that copies could not
be taken out of the building. Thereafter, you requested copies of the three videos from the
Department under the Freedom of Information Law. The request was denied on the basis of
§87(2)(e)(iv) of the Freedom of Information Law, and you appealed the denial on October 9. Despite
having contacted the Department on several occasions, as of the date of your letter to this office, your
appeal had not yet been determined.

In this regard, I offer the following comments.

First, the provision concerning the right to appeal a denial of access to records, §89(4)(a) of
the Freedom of Information Law, states in relevant part that the person designated by the head of an
agency to determine appeals "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." It has been held that if an agency does not respond to an appeal within ten
business days of its receipt of an appeal that the applicant for the record has exhausted his or her
administrative remedies and may initiate a judicial proceeding to seek review of the denial of access
[see Floyd v. McGuire, 87 AD2d 388, appeal dismissed, 57 NY2d 774 (1982)]. Therefore, you may
choose to bring suit against the Department under Article 78 of the Civil Practice Law and Rules.
It is my hope, however, that a review of this response by the Department will serve to resolve the
matter.

Second, with respect to rights of access, 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, 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, the state's highest court, 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 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 Department has engaged in a blanket denial of access in
a manner which, in my view, is equally inappropriate.

Third, the Freedom of Information Law pertains to all records maintained by or for an
agency, and §86(4) defines the term "record" to mean:

"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 on the foregoing, assuming that the videotapes are maintained by or for the Department, I
believe that they would constitute Department "records" subject to rights of access. The denial of
your request by the Department itself indicates that the Department has custody of the tapes.

Next, when records are accessible under the Freedom of Information Law, they must be made
available for inspection and copying. Section 89(3) specifies that "[u]pon payment of, or offer to
pay, the fee prescribed therefor, the entity shall provide a copy of such record..." Under §87(1)(b(iii),
the fee in this instance would be based on the "actual cost of reproduction."

I note that the Court of Appeals in Russo v.Nassau County Community College [81 NY2d
690 (1993)] found that curricular material, a film used in a course given by the College, constituted
a "record" that fell within the requirements of the Freedom of Information Law. Further, since the
film had been seen by many students, there was no basis for withholding the film or denying a
request for a copy. Assuming that the videotapes in question have been or could have been viewed
by any member of the public, in my view, there would be no basis for a denial of access. I believe
that the Department in that circumstance would have effectively waived its ability to withhold the
tapes.

Even if you or other members of the public had not been given the opportunity to view the
tapes, if they had never been disclosed to the public, it is likely that the blanket denial of access by
the Department was overbroad. The leading decision involving similar records indicated that
portions of the records might justifiably be withheld, but that the remainder must be disclosed.
Specifically, 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).

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. I would
conjecture, however, that not all of the investigative techniques or procedures contained in the
records sought incident and the ensuing investigation could be characterized as "non-routine", and
that it is unlikely that disclosure of each aspect of the records would result in the harmful effects of
disclosure described above.

The other provision that may be pertinent as a basis for denial is §87(2)(f). Again, that
provision permits an agency to withhold records insofar as disclosure "would endanger the life or
safety of any person." If, for example, disclosure of an instruction to staff, i.e., a training tape, would
jeopardize the lives or safety of public employees or others, the cited provision might be applicable.

In an effort to enhance compliance with the Freedom of Information Law, a copy of this
opinion will be forwarded to William Tesler, the Department's designated appeals officer.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: William Tesler