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  April 1, 2002

 

Hon. Maureen Nardacci
City Clerk
City of Rensselaer
City Hall
505 Broadway
Rensselaer, NY 12144

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, unless otherwise indicated.

Dear Ms. Nardacci:

As you are aware, I have received your letter of March 1 in which you requested an advisory
opinion concerning rights of access to "statements and/or transcripts from any officer or person
regarding the alleged conduct of Chief Frederick Fusco on or about the evening of January 25,
2002...." One request was made by the attorney for Chief Fusco; the other was made by a reporter
for the Times Union.

It is noted at the outset that the matter that is subject of your inquiry and the requests for
records have been widely publicized in local newspapers, and on radio and television. Further, it
has been determined since you prepared your letter that the allegation that Chief Fusco was
intoxicated while at the scene of a murder investigation was unfounded. Reference to information
that has become known to the public will be made where appropriate, and I offer the following
comments regarding the matter.

First, the Freedom of Information Law pertains to existing records, and §89(3) of that statute
provides in part that an agency need not create a record in response to a request. Therefore, if, for
example, statements were made that were not recorded in any way, the City would not be obliged
to prepare a new record on behalf of an applicant. It is emphasized, however, that the term "record"
is defined expansively 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, insofar as the information sought exists in some physical form (i.e., a tape
or video recording, a written report or transcript, etc.), I believe that it would constitute a "record"
that falls within the coverage of the Freedom of Information Law.

Second, as a general matter, 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.

Although the Freedom of Information Law generally grants the same rights of access to any
person, regardless of one's status or interest [see Burke v. Yudelson, 368 NYS2d 779, aff'd 51 AD2d
673, 378 NYS2d 165 (1976); M. Farbman & Sons v. New York City Health and Hosps. Corp., 62
NY2d 75 (1984)] in this instance, because one of the requests was made by an attorney representing
the Chief, that request must, in my view, be distinguished from that of the reporter. The reporter,
in my opinion, has the same rights as the public generally.

Relevant to the matter 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 §50-a of
the Civil Rights Law, which prohibits an agency from disclosing personnel records relating to a
police officer that are used to evaluate performance toward continued employment or promotion,
unless the police officer consents in writing to disclosure or a court orders disclosure.

From my perspective, based on §50-a, the City cannot disclose the records in question to the
reporter or the public generally absent the written consent of the Chief. However, since the Chief
as the subject of the records has the right to waive the confidentiality conferred by that provision,
arguably, he has the right to gain access to records exempt from disclosure to the public, because
they pertain to him. While a police officer who is the subject of a record may have the right to
consent to disclosure, it does not necessarily follow, in my opinion, that he or she necessarily has
rights of access to the entirety of every record that falls within the coverage of §50-a. For instance,
in numerous situations in which a member of the public has complained regarding the actions of a
public employee, it has been advised that portions of a record identifiable to the complainant or
perhaps a witness to an event may be withheld under §87(2)(b) of the Freedom of Information Law
on the ground that disclosure would constitute "an unwarranted invasion of personal privacy." In
that circumstance, the provisions of the Freedom of Information Law would serve as the statute that
determines rights of access.

Assuming that §50-a does not confer rights of access upon a police officer and that the
Freedom of Information Law is used to determine a police officer's rights of access, I believe that
the Chief or his attorney would have the ability to gain access substantial portions of the records in
question. While the example offered in the preceding paragraph focused on the privacy of a member
of the public, based on news reports, it is my understanding that statements regarding the Chief's
conduct were made by City police officers and State troopers. If that is so, I believe that portions
of records indicating their identities would be accessible to the Chief or his attorney.

While the standard concerning privacy is flexible and may be subject to conflicting
interpretations, the courts have provided substantial direction regarding the privacy of public officers
and employees. It is clear that public officers and employees enjoy a lesser degree of privacy than
others, for it has been found in various contexts that public officers and employees are required to
be more accountable than others. Further, with regard to records pertaining to public officers and
employees, the courts have found that, as a general rule, records that are relevant to the performance
of their official duties are available, for disclosure in such instances would result in a permissible
rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of
Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd
45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co.
and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State,
406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989);
Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v.
Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30,1980; Capital Newspapers
v. Burns, 109 AD 2d 292 (1985) aff'd 67 NY 2d 562 (1986)]. Conversely, to the extent that records
are irrelevant to the performance of one's official duties, it has been found that disclosure would
indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct.,
Nassau Cty., NYLJ, Nov. 22, 1977].

In my opinion, when a police officer or State trooper offers information acquired in the
performance of his or her official duties, that person is acting in his or her governmental capacity.
If that is so, portions of statements, reports or other records falling within the scope of the request
would be accessible to the Chief or his representative, for disclosure would not involve items of a
"personal" nature and would be relevant to the performance of the duties of those officers or
employees named in the records.

Another ground for denial of possible significance, §87(2)(g), pertains to communications
between or among officers or employees of state and local government. Due to its structure,
however, it often requires substantial disclosure. Specifically, that provision permits an agency to
withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that
are reflective of opinion, advice, recommendation and the like could in my view be withheld.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

 

cc: Brian D. Premo
Bob Gardinier