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October 16, 2001

 

Ms. Janice Mortimer Pennington
803 Bottchers Landing
Big Flats, NY 14814

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 Ms. Pennington:

I have received your letter of September 11and the materials attached to it. You have sought
an opinion concerning a denial of your request for a photograph of an employee of the Erie County
Department of Health.

It had been advised on July 24 in an opinion addressed to you that, except in rare instances,
photographs of public employees used for purposes of identification must be disclosed, for there is
nothing intimate or personal about the photograph in that circumstance. The exception that was cited
pertained to the situation in which a law enforcement employee is involved in undercover or similar
work and disclosure would endanger his or her life or safety. In that instance, §87(2)(f) of the
Freedom of Information Law might justifiably be cited as a basis for a denial of access. In the letter
denying your request, it was stated that the subject of the photo "performed an autopsy on a
homicide victim in 1992", that your husband "was accused of fatally wounding the victim" and that
the subject of the photo "testified for the prosecution in the trial against your husband." That person
and his attorney have expressed concern that disclosure of the photo could place him "at risk of
imminent personal harm", and the County cited the provision referenced above as the basis for its
denial of access.

In this regard, in a case in which a defendant sought materials from the office of a district
attorney that ordinarily could be withheld under the Freedom of Information Law, it was determined
that "once the [records] have been used in open court, they have lost their cloak of confidentiality
and are available for inspection by a member of the public" [Moore v. Santucci, 151 AD2d 677,679
(1989)]. While the record at issue was not used in evidence in a public judicial proceeding, it
appears that the principle expressed above would be applicable, that the photo of a public employee
who testified at a public proceeding during which any person could have been present and seen his
face should be accessible, except perhaps in extraordinary circumstances. In my view, those
circumstances might involve a situation in which a threat has been made or, again, where a person
works undercover or in a manner in which his or identity could, if disclosed, jeopardize that person's
safety. On the other hand, if the subject of the photo frequently testifies at public proceedings, which
often is so when he or she performs autopsies, that person's identity is effectively made known, and
I do not believe that a denial of access to his or her photo could be justified.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Leon I. Nadler
Carl J. Calabrese