March 25, 2005
I have received a copy of a letter of March 4 addressed to you by Kareen Tyler, Village Clerk of the Village of Saranac Lake. As I understand her remarks, your request for "crew dispatch records" concerning fire protection and rescue services was denied on the ground that disclosure would result in "an unwarranted invasion of personal privacy" and, therefore, may be withheld pursuant to §87(2)(b) of the Freedom of Information Law. She added that you could appeal that decision to me and that the Village would make the records available if I indicate that the Village "must allow you access to these records."
In this regard, it is emphasized at the outset that this office, the Committee on Open Government, is authorized to provide advice and opinions concerning the Freedom of Information Law. Neither the Committee nor myself is empowered to require that an agency, such as the Village, must grant or deny access to records. Further, §89(4)(a) of that statute indicates that a denial of a request may be appealed the Village Board of Trustees or to a person or body designated by the Board. Specifically, that provision states in relevant part that:
"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person thereof designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
With respect to the substance of the matter, access to the dispatch records, I point out that, as a general matter, 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. Further, the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the grounds for denial that follow. That phrase quoted in the preceding sentence indicates that a single record or report may contain both accessible and deniable information. Moreover, that phrase in my opinion imposes an obligation upon agencies to review requested records in their entirety to determine which portions, if any, may justifiably be withheld.
Relevant is the provision to which reference was made by the Village Clerk, which states that an agency may withhold records or portions thereof that:
"if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article..."
In addition, §89(2) lists a series of examples of unwarranted invasions of personal privacy, the first two of which pertain to:
"i. disclosure of employment, medical or credit histories or personal references or applicants for employment;
ii. disclosure of items involving the medical or person records of a client or patient in a medical facility..."
From my perspective, a record of a medical emergency call consists in part of what might be characterized as a medical record or history relating to the person needing care or service [see Hanig v. NYS Department of Motor Vehicles, 79 NY2d 106 (1992)].
In my opinion, portions of records identifying those to whom medical services were rendered, their ages, and descriptions of their medical problems or conditions could be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy, for disclosure of a name coupled with those details in my view represents a personal and somewhat intimate event in the individual’s life. However, I believe that other aspects of the records, such as the locations of calls or addresses, should be disclosed. In my view, an emergency call, particularly when sirens or flashing lights are used, is an event of a public nature. When a fire truck or ambulance travels to its destination, that destination is or can be known to those in the vicinity of the event. In essence, I believe that event is of a public nature and that disclosure of an address or a brief description of an event would not likely constitute an unwarranted invasion of personal privacy. Nevertheless, the personally identifiable details described earlier could in my view be withheld.
A copy of this opinion will be forwarded to the Village Clerk.
I hope that I have been of assistance.
Robert J. Freeman
cc: Kareen Tyler