September 10, 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 facts presented in your correspondence, unless otherwise indicated.
I have received your letter in which you sought an opinion in order to ascertain "whether there is a legal basis in New York State for the denial of [your] request to the New York City Police Department for information concerning certain of the Department's domestic surveillance activities."
You wrote that a request made on March 31 was not answered but was later supplemented with a second request made on June 11 that "was designed to more specifically and narrowly identify the information [you were] seeking." The request involved:
"A.) The aggregate number of organizations - political, social, religious or educational/student - that have been the subject of surveillance of other information-gathering of any kind during the period January 1, 2000 and May 31, 2003. (Street gangs and organized crime surveillance are not included in this request)."
"B.) The identities of the political, social, religious or educational/student organizations referenced in (A.) above.
"C.) The aggregate number of surveillance or information-gathering operations involving the organizations described in (A.) above between January 1, 2000 and May 31, 2003, identified by year of operation.
"D.) The aggregate number of requests made to libraries and bookstores within your jurisdiction for records of specific patron usage or patron purchases made by your department or made at the request of any other department (local, state or federal) during the period of September 1, 2001 and May 31, 2003 under provisions of any local or state law or the US Patriot Act of 2001 or Homeland Security Act of 2002 as it may pertain to local law enforcement.
"E.) The aggregate number of requests made to Internet Service Providers or other purveyors of online communications for e-mail records or server logs of individuals or organizations (either by name or IP address during the period September 1, 2001 and May 31, 2003.
"F.) Copies of all department orders or other instructions or guidelines distributed to members of your department containing or concerning the conduct of surveillance or the circumstances under which requests in (D.) and (E.) above can be made, and whom must approve such requests.
"G.) Copies of any regulations or operational orders distributed to members of your department that have been specifically promulgated under the provisions of the US Patriot Act of 2001 or the Homeland Security Act of 2002."
The Department denied the request in the entirety on the basis of §87(2)(e)(i) of the Freedom of Information Law. That provision authorizes an agency to deny access to records "compiled for law enforcement purposes" insofar as disclosure would "interfere with law enforcement investigations or judicial proceedings."
In this regard, I offer the following comments.
First, as we discussed during our telephone conversation, the Freedom of Information Law pertains to existing records, and §89(3) states in part that an agency, such as the Department, is not required to create a record in response to a request. Therefore, if no "aggregate" figures exist with respect to the time period to which you referred, the Department would not be required to prepare new records to satisfy your request. I believe that it was suggested when we spoke that your request might be amended to seek aggregate figures or equivalent data regarding any time periods within the date to which you referred.
Second, to the extent that records fall within the scope of your request exist, even if some aspects of those records could justifiably be withheld, based on the language of the law and its judicial construction, I believe that a "blanket" denial of access would be inappropriate.
As you may be aware, 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. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
The state's highest court, the Court of Appeals, expressed and confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY 2d 267 (1996)], stating that:
"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).
Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the agency contended that complaint follow up reports, also known as "DD5's", could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception separate from that cited in response to your request. The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276). The Court then stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, directing that:
"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).
As you inferred in your letter, disclosure of the names of organizations that have been the subjects of surveillance (item B of your request) could likely be withheld. Disclosure in my view, would likely interfere with an investigation. However, figures indicating "aggregate numbers" sought in items A, C, D and E of your request must, in my view, be disclosed. In short, aggregate figures, without additional information regarding the scope, currency or specific nature of a law enforcement activity, could not, in my opinion, justifiably be withheld under §87(2)(e)(i) or any other exception to rights of access.
Any such aggregate data would constitute "intra-agency material" that falls within §87(2)(g). However, subparagraph (i) of that provision requires the disclosure of "statistical or factual tabulations or data", unless separate exceptions may be asserted.
I believe that the focus of the analysis relative to items F and G of your request differs from the preceding considerations. Most pertinent with respect to orders, instructions, guidelines or regulation is subparagraph (iv.) of §87(2)(e). That provision pertains to the authority to withhold records compiled for law enforcement purposes which, if disclosed, would reveal non-routine criminal investigative techniques and procedures.
The Court in Gould referred to the leading decision concerning that exception, Fink v. Lefkowitz [47 NY2d 567 (1979)]. That decision involved access to a manual prepared by a special prosecutor that investigated nursing homes in which the Court of Appeals held that:
"The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised the nonroutine procedures by which an agency obtains its information (see Frankel v. Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution.
"To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed. Such information in the hands of the public does not impede effective law enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements (see Stokes v. Brennan, 476 F2d 699, 702; Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795; Davis, Administrative Law [1970 Supp], section 3A, p 114).
"Indicative, but not necessarily dispositive of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel (see Cox v. United States Dept. of Justice, 576 F2d 1302, 1307-1308; City of Concord v. Ambrose, 333 F Supp 958)."
In applying those criteria to specific portions of the manual, which was compiled for law enforcement purposes, the Court found that:
"Chapter V of the Special Prosecutor's Manual provides a graphic illustration of the confidential techniques used in a successful nursing home prosecution. None of those procedures are 'routine' in the sense of fingerprinting or ballistic tests (see Senate Report No. 93-1200, 93 Cong 2d Sess ). Rather, they constitute detailed, specialized methods of conducting an investigation into the activities of a specialized industry in which voluntary compliance with the law has been less then exemplary.
"Disclosure of the techniques enumerated in those pages would enable an operator to tailor his activities in such a way as to significantly diminish the likelihood of a successful prosecution. The information detailed on pages 481 and 482 of the manual, on the other hand, is merely a recitation of the obvious: that auditors should pay particular attention to requests by nursing homes for Medicaid reimbursement rate increases based upon projected increase in cost. As this is simply a routine technique that would be used in any audit, there is no reason why these pages should not be disclosed" (id. at 573).
As the Court of Appeals has suggested, to the extent that the records in question include descriptions of investigative techniques or procedures which if disclosed would enable potential lawbreakers to evade detection or endanger the lives or safety of law enforcement personnel or others [see also, Freedom of Information Law, §87(2)(f)], a denial of access would be appropriate. Again, however, even if there may be portions of the records sought which if disclosed would result in those deleterious effects, the remainder of the records must, in my view, be disclosed.
I hope that I have been of assistance.
Robert J. Freeman
cc: Leo Callaghan
Lt. Michael Pascucci