March 5, 2004
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.
I have received a copy of your letter of February 6 addressed to Jonathan David, Records Access Appeals Officer for the New York City Police Department. You indicated in the letter that by sending a copy to me, you are seeking an advisory opinion concerning the propriety of a denial of a request for records made pursuant to the Freedom of Information Law.
In brief, you requested records on behalf of your client, Sing Tao Newspapers New York Ltd. and its reporter, Chin Yun Feng, "concerning the investigation, arrest and plea of guilty by Ying Liu, including "arrest reports, mug shots and any other photographs in the police files, police reports and notes, investigators’ reports and notes, and any evidence seized." You also sought records pertaining to "any investigation into whether Ms. Liu was running a business....without the appropriate license to do so", as well as a public statement issued by the Department concerning her case. The prosecution of Ms. Liu, according to court papers appended to the letter, ended with an agreement that she pay restitution to certain complainants and "a plea of guilty to disorderly conduct." The court accepted the plea and determined that "Sentence is a conditional discharge."
In response to the request, Lt. Michael Pascucci denied access "on the basis of Public Officers Law section 87(2)(e)(i) as such records/information, if disclosed would interfere with law enforcement investigations or judicial proceedings." Based on the facts as indicated in your letter and the materials attached to it, I do not believe that the Department can support or justify its response. In this regard, I offer the following comments.
First and perhaps most importantly, 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 Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, 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)" [89 NY2d 267, 275 (1996)].
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 Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception different 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), and 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, stating 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.).
In the context of your request, the Department has engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate. I am not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by that agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).
In short, I believe that the blanket denial of the request was inconsistent with law.
Second, the basis for the denial offered by the Department appears, at this juncture, to be without justification. The provision upon which the denial is based, §87(2)(e)(i), authorizes and agency to withhold records that "are compiled for law enforcement purposes and which, if disclosed, would...interfere with law enforcement investigations or judicial proceedings..."
In an Appellate Division decision that is often cited in the context of records relating to law enforcement, Pittari v. Pirro, [258 Ad2d 202 (1999)], it was stated that:
"[t]he question is whether the nature of the records sought and the timing of the FOIL request rendered those records exempt from disclosure under FOIL. The Court of Appeals, in Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 572, 419 N.Y.S.2d 467, 393 N.E.2d 463 noted:
‘[T]he 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’" (id., 169).
The "timing" in this instance is clearly different from that in Pittari. As I understand the matter, the defendant in that case sought records under the Freedom of Information Law prior to discovery, for the court found that "[i]f a criminal proceeding is pending, mandating FOIL disclosure would interfere with the orderly process of disclosure in the criminal proceeding set forth in CPL article 240" (id., 171). In contrast, you have requested records after conviction and the conclusion of the proceedings. Consequently, the harm sought to be avoided by the court in Pittari is not a consideration, and §87(2)(e)(i) in my view is cannot validly serve as a basis for a denial of access.
In view of the nature of the records sought, it is possible that other grounds for denial of access might enable the Department to withhold portions of the records. For instance, identifying details pertaining to witnesses or others interviewed by the Department might be deleted on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see §87(2)(b)]. Portions of inter-agency or intra-agency materials consisting of advice, opinion or recommendation offered by Department or other agency officers or employees could, in my view, be withheld under §87(2)(g) (see Gould, supra, 276-277). The remaining aspects of the records sought, however, would appear to be accessible, for none of the grounds for denial of access appear to apply.
In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be sent to the Department’s records access and appeals officers.
I hope that I have been of assistance.
Robert J. Freeman
cc: Jonathan David
Lt. Michael Pascucci