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FOIL-AO-14865

August 25, 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.

Dear

I have received your letter in which you sought an advisory opinion concerning rights of access to "a police report involving an alleged child abuse incident that occurred in the City of Ithaca." You wrote that the Police Department advised that "the 13-year old child who is the alleged victim of abuse said to have been perpetrated by her father has been placed in foster care under the auspices of the Tompkins County Child Protective Service." Further, the defendant has been charged with endangering the welfare of a child.

You suggested that disclosure of the report might violate §372 of the Social Services Law. From my perspective, that statute, as well as others, may be pertinent in considering whether the police report is required to be or may be withheld. In this regard, I offer the following comments.

As you are aware, the Freedom of Information Law pertains to all government agency records and 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 to the matter is the initial ground for denial, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute, as you indicated, is §372 of the Social Services Law, which requires that various records be kept by "every court, and every public board, commission, institution, or officer having powers or charged with duties in relation to abandoned, delinquent, destitute, neglected or dependent children who shall receive, accept or commit any child..." Subdivision (4) of §372 states in relevant part that such records:

"shall be deemed confidential and shall be safeguarded from coming to the knowledge of and from inspection or examination or by any person other than one authorized, by the department, by a judge of the court of claims when such records are required for the trial of a claim or other proceeding in such court or by a justice of the supreme court, or by a judge of the family court when such records are required for the trial of a proceeding in such court, after a notice to all interested persons and a hearing, to receive such knowledge or to make such inspection or examination. No person shall divulge the information thus obtained without authorization so to do by the department, or by such judge or justice."

Based on the foregoing, I do not believe that records maintained by entities having duties relating to foster care can be disclosed, unless authorization to disclose is conferred by a court, or by the successor of what formerly had been the Department of Social Services and the Division for Youth. While I know no judicial decision concerning the status of a police report in relation to §372, if the Police Department can be characterized as an entity having powers or duties relative to any category of children referenced in that statute, the City, in my view, would be prohibited from disclosing the report.

While I do not believe that it clearly applies in this instance, §422 of the Social Services Law also offers guidance relative to the kind of record at issue. That statute pertains to the statewide central register of child abuse and maltreatment. Subdivision (2)(c) refers to a situation in which a call made to the central register is transmitted to a local department of social services, and that agency contacts "the appropriate law enforcement agency, district attorney or other public official empowered to provide necessary aid or assistance." In that situation, a report prepared by a police department in response to a request for assistance in the possession of a department of social services "shall be confidential" and beyond the scope of public rights of access pursuant to subdivision (4)(A) of §422. Although the City of Ithaca is not a department of social services subject to that statute, there is, in my view, a clear indication of an intent to confer confidentiality.

In addition to the provisions cited above, there are exceptions in the Freedom of Information Law that are pertinent as well.

Section 87(2)(b) authorizes an agency to deny access to records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." That provision in my opinion may generally be asserted to withhold records or portions thereof identifiable to a victim, a complainant, or perhaps a witness.

Section 87(2)(e) enables an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

You wrote that the matter to which the report relates "is still pending in local criminal court." That being so, disclosure might at this juncture interfere with a judicial proceeding; the report might also identify a confidential source. If either would be the result, subparagraphs (i) or (iii), respectively, may be asserted to deny access.

A police report would also fall within §87(2)(g), which permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted [i.e., §87(2)(b) or (e)]. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

Lastly, when records have been introduced in a public judicial proceeding and are accessible from a court, it has been held that an agency loses its ability to withhold those records under the Freedom of Information Law [see Moore v. Santucci, 151 AD2d 677 (1989)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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