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FOIL-AO-15507

September 26, 2005
E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

Dear

As you are aware, I have received your letter. Please accept my apologies for the delay in response.

You have asked whether "a municipality [may] deny access to records showing security measures in place in public buildings", and whether "a municipality [may] deny access to those who hold burglar alarm permits."

In this regard, 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.

Pertinent with respect to both aspects of your inquiry is §87(2)(f). For more than twenty years that provision authorized agencies to withhold records insofar as disclosure "would endanger the life or safety of any person." Although an agency has the burden of defending secrecy and demonstrating that records that have been withheld clearly fall within the scope of one or more of the grounds for denial [see §89(4)(b)], in the case of the assertion of that provision, the standard developed by the courts was somewhat less stringent. In citing §87(2)(f), it was found that:

"This provision of the statute permits nondisclosure of information if it would pose a danger to the life or safety of any person. We reject petitioner’s assertion that respondents are required to prove that a danger to a person’s life or safety will occur if the information is made public (see, Matter of Nalo v. Sullivan, 125 AD2d 311, 312, lv denied 69 NY2d 612). Rather, there need only be a possibility that such information would endanger the lives or safety of individuals...."[emphasis mine; Stronza v. Hoke, 148 AD2d 900,901 (1989)].

The principle enunciated in Stronza appeared in several other decisions [see Ruberti, Girvin & Ferlazzo v. NYS Divsion of the State Police, 641 NYS 2d 411, 218 AD2d 494 (1996), Connolly v. New York Guard, 572 NYS 2d 443, 175 AD 2d 372 (1991), Fournier v. Fisk, 83 AD2d 979 (1981) and McDermott v. Lippman, Supreme Court, New York County, NYLJ, January 4, 1994], and it was determined in American Broadcasting Companies, Inc. v. Siebert that when disclosure would "expose applicants and their families to danger to life or safety", §87(2)(f) may properly be asserted [442 NYS2d 855, 859 (1981)]. Also notable is the holding by the Appellate Division in Flowers v. Sullivan [149 AD2d 287, 545 NYS2d 289 (1989)] in which it was held that "the information sought to be disclosed, namely, specifications and other data relating to the electrical and security transmission systems of Sing Sing Correctional Facility, falls within one of the exceptions" (id., 295). In citing §87(2)(f), the Court stated that:

"It seems clear that disclosure of details regarding the electrical, security and transmission systems of Sing Sing Correctional Facility might impair the effectiveness of these systems and compromise the safe and successful operation of the prison. These risks are magnified when we consider the fact that disclosure is sought by inmates. Suppression of the documentation sought by the petitioners, to the extent that it exists, was, therefore, consonant with the statutory exemption which shelters from disclosure information which could endanger the life or safety of another" (id.).

In short, although §87(2)(f) referred to disclosure that would endanger life or safety, the courts have clearly indicated that "would" meant "could."

In an effort to ensure that agencies are able to deny access to records insofar as disclosure could reasonably be expected to endanger life or safety, the Committee on Open Government recommended that "would" be replaced with "could", and legislation was enacted in 2003 accomplishing that goal.

If a person seeks the building plans concerning my house, which is not unique, I do not believe that there would be any basis for a denial of access. If, however, in the case of records pertaining to a government facility, a bank, a power plant, etc., disclosure could endanger life or safety, and the records may be withheld, in my opinion, to that extent.

Lastly, of possible relevance with respect to residential burglar alarm permits is §89(2)(b), which includes examples of instances in which records or portions of records may be withheld on the ground that disclosure would constitute "an unwarranted invasion of personal privacy." One of the examples, subparagraph (iii), states that an unwarranted invasion of personal privacy includes the "sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes." Based on the foregoing, for example, a list of residential permit holders, or the equivalent of a list, may be withheld if the list or the equivalent would be used for a commercial or fund-raising purpose.

I hope that the foregoing serves to clarify your understanding and that I have been of assistance.

RJF:jm