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FOIL-AO-14350

November 10, 2003

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

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 indicated that you were the victim of a crime and would like to "get a copy of the 911 call [you] made" in order to seek an order of protection.

In this regard, a request should be made to the police department that maintains the record. Whether a tape recording or transcript of your call must be disclosed would be dependent on the nature of the police department. In general, 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.

Relevant 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 §308(4) of the County Law, which states that:

"Records, in whatever form they may be kept, of calls made to a municipality's E911 system shall not be made available to or obtained by any entity or person, other than that municipality's public safety agency, another government agency or body, or a private entity or a person providing medical, ambulance or other emergency services, and shall not be utilized for any commercial purpose other than the provision of emergency services."

Based on the foregoing, "records...of calls" means either a recording or a transcript of the communication between a person making a 911 emergency call, and the employee of the municipality who receives the call. Records of that nature are, in my view, exempted from disclosure by statute.

I note although the term "municipality" most often would include a town, city or village, that is not so in this context. Section 301 of the County Law contains a series of definitions for application in Article 6, and subdivision (1) defines "municipality" to mean "any county except a county wholly contained within a city and any city having a population of one million or more persons." That being so, §308(4) applies only to counties outside of New York City and does not apply to a city, town or village police department.

If §308 does not apply because the 911 call was made to a police department other than a county agency, the Freedom of Information Law governs rights of access. In that event, since you could not invade your own privacy, I do not believe that there would be any basis for withholding the record in question from you.

Lastly, even if §308 of the County Law is applicable, I do not believe that §308(4) can be construed to mean records regarding or relating to a 911 call. If that were so, innumerable police and fire reports, including arrest reports and police blotter entries, would be exempt from disclosure in their entirety.

I hope that I have been of assistance.

RJF:jm