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 FOIL-AO-14245

September 5, 2003

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 materials attached to it. You indicated that you are "researching data" and requested from the Town of Amherst "all Violent Domestic Contacts received by the Amherst Police Department (and/or 911 from April 28 to April 30, 2002", and you asked that the Town include "all actual transcription of these calls for assistance, the radio dispatch, Police Incident Reports and D.I.R's". In response to the request, you were informed that:

"The Town of Amherst, New York recently enacted its own Local Law implementing a Freedom of Information policy for the Town of Amherst. The Local Law prevents dissemination of information where to do so would constitute an unwarranted invasion of personal privacy. The dissemination of personal information regarding domestic violence complaints constitutes an unwarranted invasion of personal privacy. Therefore, your request is denied."

In this regard, I offer the following comments.

First, although I am unfamiliar with the specific language of the local law, I believe that it would be invalid insofar as it is inconsistent with the Freedom of Information Law. As a general matter, that statute 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, an assertion or claim of confidentiality, unless it is based upon a statute, is likely meaningless. When confidentiality is conferred by a statute, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute". If there is no statute upon which an agency can rely to characterize records as "confidential" or "exempted from disclosure", the records are subject to whatever rights of access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. As such, an assertion of confidentiality without more, would not in my opinion guarantee or require confidentiality.

Moreover, it has been held by several courts, including the Court of Appeals, the state's highest court, that an agency's regulations or the provisions of a local enactment, such as an administrative code, local law, charter or ordinance, for example, do not constitute a "statute" [see e.g., Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 Ad 2d 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)]. For purposes of the Freedom of Information Law, a statute would be an enactment of the State Legislature or Congress. Therefore, a local enactment cannot confer, require or promise confidentiality. This not to suggest that the records sought must be disclosed; rather, I am suggesting that the records may be withheld in accordance with the grounds for denial appearing in the Freedom of Information Law, and that any local enactment that is inconsistent with that statute would be void to the extent of any such inconsistency.

Second, from my perspective, the extent to which the records must be disclosed is dependent on their content and the effects of disclosure.

Perhaps most significant is the provision to which the response by the Town alluded. Section 87(2)(b) authorizes an agency deny access insofar as disclosure would constitute "an unwarranted invasion of personal privacy." In the context of your inquiry, it has been advised that the identities of those involved in a domestic dispute may be withheld, unless an arrest, a charge or some other significant police intervention occurs. When there is an arrest, the identity of the person charged would clearly be public. The provision pertaining to unwarranted invasions of personal privacy may also be applicable as a means of withholding the identities of witnesses or informants, for example.

Other grounds for denial may also be pertinent. Often most significant in relation to police activities 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."

The ability to deny access under the provision quoted above is based on the effects of disclosure and the possibility of harm or interference with a law enforcement function. Similarly, §87(2)(f) permits an agency to deny access insofar as disclosure "could endanger the life or safety of any person." I note, too, that §459-g requires that the street address of any residential program for victims of domestic violence that has applied for funding from the Office Children and Family Services be kept confidential.

Lastly, if an agency maintains statistical information reflective of the number of domestic incidents or similar data, I believe that those items contained within records must be disclosed, assuming that none of the other grounds for denial can be asserted. Under §87(2)(g)(i), internal documents consisting of "statistical or factual tabulations or data" must be disclosed, again, unless a separate provision authorizes a denial of access.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Susan Jaros
Capt. Enzio G. Villalta