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August 27, 2001

FOIL-AO-12909

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 and the correspondence attached to it. You wrote that you have
been retained by the Town of Clarkstown "to investigate the availability of civil remedies, if any,
in connection with the Town's acquisition of land in the Town of Ramapo." Having requested
records from the Office of the Rockland County District Attorney that "are material and necessary
to the Town's investigation", particularly those "reflecting payment(s) from Patrick Farms, LLC to
Mr. Paul Adler", you were informed that it would not disclose the records sought. In a letter to an
assistant district attorney, you expressed the understanding that the Office of the District Attorney
"may be a party to a plea agreement" with Mr. Adler, who is apparently the defendant in United
States v. Adler, and that the District Attorney "will not further prosecute the Defendant criminally
for any conduct set forth in the federal information, complaint and/or indictment."

Assuming that the matter has been accurately presented, it appears that the records sought
should be made available in great measure, if not in their entirety. In this regard, I offer the
following comments.

First and 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 reiterated its general view of the intent of the Freedom of Information
Law in 1996 in Gould v. NYC Police Department (89 NY2d 267), 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 Department contended that 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 requests. 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.).

Second, often the most significant exception to rights of access to records relating to a
criminal matter is §87(2)(e), which authorizes 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."

From my perspective, based on the language quoted above, it is clear that the ability to deny access
involves the goal of avoiding the harmful effects of disclosure described in subparagraphs (i) through
(iv). Under the circumstances that you presented, it appears unlikely that disclosure would give rise
to the harmful effects envisioned by §87(2)(e)(i) or (ii). If indeed there has been a plea agreement
and there is no possibility of further prosecution, disclosure would neither interfere with an
investigation or a judicial proceeding, nor would it deprive the defendant of a fair trial, for there will
be no trial. The remaining provisions within the exception appear to be irrelevant.

Moreover, to characterize all of the records at issue as having been compiled for law
enforcement purposes, even though they may be used in or pertinent to an investigation, would be
inconsistent with both the language and the judicial interpretation of the Freedom of Information
Law. The Court of Appeals has held on several occasions that the exceptions to rights of access
appearing in §87(2) "are to be narrowly construed to provide maximum access, and the agency
seeking to prevent disclosure carries the burden of demonstrating that the requested material falls
squarely within a FOIL exemption be articulating a particularized and specific justification for
denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, M. Farbman
& Sons v. New York City Health and Hospitals Corp., 62 NY 2d 75, 80 (1984); Fink v. Lefkowitz,
47 NY 2d 567, 571 (1979)]. Based upon the thrust of those decisions, §87(2)(e) should be construed
narrowly in order to foster access. Further, case law illustrates why §87(2)(e) should be construed
narrowly, and why a broad construction of that provision would give rise to an anomalous result.
Specifically, in King v. Dillon (Supreme Court, Nassau County, December 19, 1984), the District
Attorney was engaged in an investigation of the petitioner, who had served as a village clerk. In
conjunction with the investigation, the District Attorney obtained minutes of meetings of the village
board of trustees "pursuant to a Grand Jury subpoena." Those minutes, which were prepared by the
petitioner, were requested from the District Attorney. In granting access to the minutes, the decision
indicated that "the party resisting disclosure has the burden of proof in establishing entitlement to
the exemption," and the judge wrote that he:

"must note in the first instance that the records sought were not
compiled for law enforcement purposes (P.O.L. 87[2]e). Minutes of
Village Board meetings serve a different function...These were public
records, ostensibly prepared by the petitioner, so there can be little
question of the disclosure of confidential material."

Often records prepared in the ordinary course of business become relevant to or used in a law
enforcement investigation or perhaps in litigation. In my view, when that occurs, the records would
not be transformed into records compiled for law enforcement purposes. Records of payments
between the defendant and Patrick Farms appear to have been prepared in the ordinary course of
business, and not for any law enforcement purpose. If that is so, I do not believe that §87(2)(e)
would be applicable.

I note that a similar conclusion has been reached in other contexts relating to law
enforcement records. Again, in King (id.), it was found that records subpoenaed for presentation to
a grand jury that had been prepared in the ordinary course of business fell beyond the grand jury
secrecy requirements imposed by §190.25(4) of the Criminal Procedure Law. In another decision,
it was found that records of a County Sheriff that were in the temporary possession of the United
States Attorney for presentation to a federal grand jury did not render them secret or outside the
scope of rights of access conferred by the Freedom of Information Law [Buffalo Broadcasting Co.,
Inc. v. County of Erie, 203 AD2d 895 (1993)]. In a different but related vein, as you are aware,
"official records" relating to a criminal matter are sealed pursuant to §§160.50 and 160.55 of the
Criminal Procedure Law when a criminal proceeding has been dismissed in favor of an accused. At
issue in Lockwood v. Suffolk County Police Department (Supreme Court, Suffolk County, NYLJ,
February 14, 2001) were records that came into the possession of a law enforcement agency that
were prepared in the ordinary course of business by a third party, and it was found that those records
were not "official records" and, therefore, were not sealed in accordance with the Criminal
Procedure, but rather remained subject to rights of access granted by the Freedom of Information
Law.

In short, judicial decisions rendered in a variety of contexts indicate that records used in a
criminal investigation or proceeding are not necessarily exempt from disclosure or otherwise beyond
the scope of rights established under the Freedom of Information Law. In the context of your
inquiry, I do not believe that the records of your primary interest may be characterized as having
been compiled for a law enforcement purpose or that they would be exempted from disclosure by
a statute other than the Freedom of Information Law. As I understand the matter, exceptions to
rights of access in the Freedom of Information Law other than §87(2)(e) do not appear to be
pertinent.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Michael Bongiorno
William McClarnon