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FOIL-AO-13971

March 27, 2003

Dear

I have received your letter in which you referred to requests for two incident reports prepared by your local police department in which you were the subject of the complaints. Although the substance of the reports was disclosed, the name of the complainant was deleted with no reference to any exception to rights of access. You added, however, that the name of the complainant appearing in the first report was verbally disclosed. Your question is whether you have a right to obtain the entirety of a police report "made against" you.

In this regard, 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 and in the context of the information that you provided, two of the grounds for denial are pertinent.

First, it has generally been advised that the substance of a complaint is available, but that those portions of the complaint which identify complainants may be deleted on the ground that disclosure would result in an unwarranted invasion of personal privacy pursuant to §§87(2) and 89(2)(b). I point out that the latter states that an "agency may delete identifying details when it makes records available." Further, the same provision contains five examples of unwarranted invasions of personal privacy, the last two of which include:

"iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or

v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."

In my view, what is relevant to the work of the agency is the substance of the complaint, i.e., whether or not the complaint has merit. The identity of the person who made the complaint is often irrelevant to the work of the agency, and in such circumstances, I believe that identifying details may be deleted.

Second, although §87(2)(b) may be applicable, also potentially relevant with respect to complaints made to a law enforcement agency is §87(2)(e)(iii). That provision permits an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed would...identify a confidential source or disclose confidential information relating to a criminal investigation."

The provision quoted above or the provisions dealing with unwarranted invasions of personal privacy might also serve as a means of withholding portions of records that identify witnesses or perhaps bystanders familiar with an event.

In short, I do not believe that the subject of a complaint necessarily enjoys a right to gain access to the entirety of a complaint or incident report.

Lastly, if indeed a police officer or other official knowingly and purposely orally disclosed the identity of the complainant to you, I believe that the disclosure would constitute a waiver of the ability to deny access to that portion of the record when the record is sought under the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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