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FOIL-AO-14817

July 21, 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 facts presented in your correspondence, unless otherwise indicated.

Dear

I have received your letter in which you sought an advisory opinion concerning a denial of access to records by the Nassau County Police Department.

You requested police reports and a variety of other materials relating to certain named individuals, and the Department denied the request in its entirety on the basis of §87(2)(e)(i) of the Freedom of Information Law. I note that I contacted Police Officer Lowery, the Department official who responded to to your request, in an attempt to learn more of the matter. Although it appears that one of those named, Bonnee Price-Linden, was convicted, Officer Lowery indicated that investigations are ongoing concerning the two others identified in your request. Officer Lowery did not know whether any such conviction was the result of a plea or a trial.

In my view, the ability of the Department to properly deny access would be dependent, in part, on the extent to which records have already been disclosed, perhaps in the context of a judicial proceeding. I note that it has been held that records in possession of an agency that were used or introduced during a public judicial proceeding are accessible to the public under the Freedom of Information Law and that the exceptions to rights of access appearing in that law cannot validly be asserted in that circumstance, [see Moore v. Santucci, 151 AD2d 677 (1986)]. In Moore, it was determined that statements made by co-defendants and witnesses obtained in the course of preparing for a criminal trial which ordinarily could be withheld under the Freedom of Information Law lose their "cloak of confidentiality" once they have been made in open court (id., 679). Therefore, to the extent that your request involves records that are accessible from a court or that were introduced during a public proceeding, I believe that the Department would be required to disclose them.

To the extent that your request involves records that have not been previously disclosed in the manner described above, 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, the state’s highest court, 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[4][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, may be 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).

The provision upon which the denial is based, §87(2)(e)(i), authorizes an 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).

As I understand the matter, the defendant in Pitari 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). Whether or the extent to which the holding in Pitari is precedential would be dependent on facts that Department has not clearly expressed and of which I am unaware.

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 complainants, 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.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Commissioner James H. Lawrence
Thomas C. Krumpter
Daniel Lowery