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August 6, 2001

FOIL-AO-12859

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter in which you sought an opinion concerning your ability to obtain
"the written documentation of a police traffic radar to include any documentation originally
packaged with the radar device such as the operations manual, training manual, setup manual,
calibration manual and any documentation that describes known problems with the accuracy of such
a device under any circumstance."

Based on a recent judicial decision, Capruso v. New York State Police (Supreme Court, New
York County, NYLJ, July 11, 2001), I believe that the records in question must be disclosed in great
measure, if not in their entirety. 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 state's highest court, the Court of Appeals, reiterated and expressed its general view of
the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY
2d 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 agency contended that complaint follow up reports, also known as "DD5's", 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). The
Court then 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, directing 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 Capruso, supra, the request involved the "operator's manual for any radar speed detection
device used" by the New York State Police and the New York City Police Department. The Division
of State Police contended that disclosure would interfere with the ability to effectively enforce the
law concerning speeding. Nevertheless, following an in camera inspection of the records, a private
review by the judge, it was found that the Division could not meet it burden of proving that the
harmful effects of disclosure appearing in the exceptions to rights of access would in fact arise.

In its attempt to deny access to the records, the Division relied upon §87(2)(e)(i) and (iv) of
the Freedom of Information Law as a means of justifying its denial. Those provisions permit an
agency to withhold records that are "compiled for law enforcement purposes" to the extent that
disclosure would "i. interfere with law enforcement investigations or judicial proceedings" or "iv.
reveal criminal investigative techniques or procedures, except routine techniques and procedures."

From my perspective, records prepared by manufacturer of a radar device could not be
characterized as having been "compiled for law enforcement purposes. If my contention is accurate,
§87 (2)(e) would not be applicable as a means of withholding those records.

Even if that provision is applicable, the court in Capruso determined that a denial of access
would not be sustained. The leading decision dealing with law enforcement manuals and similar
records detailing investigative techniques and procedures is Fink v. Lefkowitz [47 NY2d 567
(1979)], which was cited in Gould, supra, and ] 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.

In consideration the direction given by the state's highest court in Fink, the court in Capruso
rejected the contentions offered by the law enforcement agencies and determined that:

"These arguments fail to establish a casual link as to how release of
the information in the manufacturers' operational manual would
enable a speeding driver to avoid detection. Similarly, absent from
the affidavits is an explanation as to how the knowledge of the testing
procedures used by the police to ensure the device is functioning
properly would enable such driver to escape detection. Furthermore,
the affidavits lack proof as to how the information in the manual
would enable the use of a jamming device which could not otherwise
be used. Thus, the claim that the release of these manuals would
result in drivers engaging in dangerous behavior solely to avoid
detection is speculative.

The State also objects to the release of the State Police Radar and
Aerial Speed Enforcement Training Manuals as they contain
‘operational and legal considerations.' However, as the Court of
Appeals stated in Fink v. Lefkowitz, supra at 571, ‘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.' The Court
explained, the question 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,' (citations
omitted) Id.

Thus, after an in camera review, the City and State have failed to
establish that the release of these manuals would allow motorists who
are violating traffic laws to tailor their conduct to evade detection."

Based on the foregoing, I believe that the records in question must be disclosed.

I hope that I have been of assistance.

RJF:tt