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FOIL-AO-14437

December 29, 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.

Dear

I have received your memorandum in which you sought my views concerning your right to gain access to a certain police report.

The report, according to your memorandum, was filed by a Village of Ossining employee with the Village Police Department, and nobody was arrested. You wrote that you want the "narrative of what was reported to have allegedly occurred." You also asked whether your understanding is correct that the Village "COULD release this report to [you] if it wanted to" and that it is apparently being withheld because you were not "the complainant or suspect."

In this regard, as you are likely aware based on your review of opinions rendered by this office, a police blotter, historically and by custom, typically contains no names. Rather, it is log or diary summarizing events reported by or to a police department that contains no investigative information. A routine entry might be something like: "Motor vehicle accident at the intersection of 5th and Main Streets, 3:10 p.m.", with the date. It would not include the names of the those involved or additional detailed information. In contrast, a police report may contain a variety of additional information, including the names of those involved, names of witnesses, informants, suspects and perhaps others (i.e., family members), as well details concerning the incident and the course or nature of an investigation.

As you are also aware, due to its structure and language, rights of access to police reports will differ from one situation to the next, for the contents of those records and the effects of disclosure are the key factors in applying the exceptions to rights of access appearing in §87(2) of the Freedom of Information Law.

If a police report includes the name of a member of the public as the complainant and that of the person who may be subject of the complaint, but no arrest is made, the provision of likely significance is §87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." It has consistently been advised that the identity of a member of the public who makes a complaint may be withheld under that provision. His or her identity is often irrelevant to the agency; what is relevant to the agency is whether the complaint has merit. Further, disclosure of his or her identity may result in retribution. If, however, a complaint is filed by a public employee acting in the performance of his or her official duties, there is nothing "personal" about his or her identity, and I do not believe that that person’s name could be withheld in that instance. With respect to the subject of the complaint, if it is found that the complaint is without merit or cannot be substantiated, it has been advised that his or her identity may be withheld based on the exception pertaining to unwarranted invasions of personal privacy. If a request is made for a record by means of the name of the subject of the complaint, the deletion of identifying details would serve no purpose, and in that instance, it has been advised that the record may be withheld in its entirety.

Lastly, the Freedom of Information Law is permissive. Stated differently, an agency may withhold records in accordance with the exceptions appearing in §87(2), but it is not required to do so. The only situations in which an agency must deny access would involve those in which a statute specifies that the record is confidential. For instance, if a person is arrested and charged with a criminal offense, and the charge is dismissed in favor the accused, the records relating to event would be sealed pursuant to §160.50 of the Criminal Procedure Law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Village Clerk
Chief of Police