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FOIL-AO-13697

 

November 12, 2002

 

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 asked how your facility can be "properly required
to disclose videotapes through FOIL." You wrote that the tapes are recycled after fourteen days and
"facility staff are automatically denying all FOIL requests for video-recordings because by the time
an appeal is responded to it'll be past 14 days of the date of the video-recording."

In this regard, I point out that the Committee on Open Government is authorized to provide
advice concerning the Freedom of Information Law. The Committee is not empowered to enforce
that statute or to compel an agency to grant or deny access to records. However, I offer the following
comments.

The Freedom of Information Law provides direction concerning the time and manner in
which agencies must respond to requests. Specifically, 89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in writing or furnish a written
acknowledgement of the receipt of such request and a statement of
the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within
five business days, or if an agency delays responding for an unreasonable time after it acknowledges
that a request has been received, a request may, in my opinion, be considered to have been
constructively denied [see DeCorse v. City of Buffalo, 239 AD2d 949, 950 (1997)]. In such a
circumstance, I believe that the denial may be appealed in accordance with 89(4)(a) of the Freedom
of Information Law. That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing body,
who 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."

In addition, it has been held that when an appeal is made but a determination is not rendered
within ten business days of the receipt of the appeal as required under 89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil Practice Law and Rules
[Floyd v. McGuire, 87 AD2d 388, appeal dismissed 57 NY2d 774 (1982)].

I do not believe that an agency can destroy or dispose of a record that has been requested
pursuant to the Freedom of Information Law. The record must, in my view, be preserved during the
pendency of any request or appeal.

With respect to the videotapes, 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.

From my perspective, two of the grounds for denial are pertinent to an analysis of rights of
access. The extent to which they may properly be asserted is, in my opinion, dependent on the nature
of the depictions on the videotapes.

Relevant are 87(2)(b), which authorizes an agency to withhold records when disclosure
would constitute " an unwarranted invasion of personal privacy", and 87(2)(f), which enables an
agency to withhold records to the extent that disclosure "would endanger the life or safety of any
person."

In a case involving a request for videotapes made under the Freedom of Information Law,
it was unanimously found by the Appellate Division that:

"...an inmate in a State correctional facility has no legitimate
expectation of privacy from any and all public portrayal of his person
in the facility...As Supreme Court noted, inmates are well aware that
their movements are monitored by video recording in the institution.
Moreover, respondents' regulations require disclosure to news media
of an inmate's 'name *** city of previous residence, physical
description, commitment information, present facility in which
housed, departmental actions regarding confinement and release' (7
NYCRR 5.21 [a]). Visual depiction, alone, of an inmate's person in
a correctional facility hardly adds to such disclosure" [Buffalo
Broadcasting Company, Inc. v. NYS Department of Correctional
Services, 155 AD 2d 106, 111-112 (1990)].

Nevertheless, the Court stated that "portions of the tapes showing inmates in states of undress,
engaged in acts of personal hygiene or being subjected to strip frisks" could be withheld as an
unwarranted invasion of personal privacy (id., 112), and that "[t]here may be additional portrayals
on the tapes of inmates in situations which would be otherwise unduly degrading or humiliating,
disclosure of which 'would result in *** personal hardship to the subject party' (Public Officers Law
 89 [2] [b] [iv])" (id.). The court also found that some aspects of videotapes might be withheld on
the ground that disclosure would endanger the lives or safety of inmates or correctional staff under
87(2)(f).

Further, in a case involving videotapes of events occurring at a correctional facility, in the
initial series of decisions relating to a request for videotapes of uprisings at a correctional facility,
it was determined that a blanket denial of access was inconsistent with law [Buffalo Broadcasting
Co. v. NYS Department of Correctional Services, 155 AD2d 106]. Following the agency's review
of the videotapes and the making of a series of redactions, a second Appellate Division decision
affirmed the lower court's determination to disclose various portions of the tapes that depicted scenes
that could have been seen by the general inmate population. However, other portions, such as those
showing "strip frisks" and the "security system switchboard", were found to have been properly
withheld on the grounds, respectively, that disclosure would constitute an unwarranted invasion of
personal privacy and endanger life and safety [see 174 AD2d 212 (1992)].

In sum, based on the language of the Freedom of Information Law and its judicial
interpretation, I believe that the Department is required to review each videotape falling within the
scope of your request to attempt to ascertain the extent to which their contents fall within the grounds
for denial appearing in the statute.

I hope that I have been of assistance.

Sincerely,

 

David Treacy
Assistant Director

DT:jm