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FOIL-AO-15572

October 19, 2005

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.

Dear

We are in receipt of your July 18, 2005 request for an advisory opinion concerning your attempts to gain access to transcripts of emergency "911" tape recordings and/or the tape recordings themselves, pursuant to requests you have made to the City of New York under the Freedom of Information Law. Please accept our apologies for the delay in responding.

As you correctly point out, the provisions of Article 6 of the County Law, which includes §308, indicates that §308 does not serve as a basis for a denial of access in this circumstance. That being so, we believe that the provisions of the Freedom of Information Law govern and must be used to determine rights of access, and conversely, the ability of the City to deny access to the records sought.

Subdivision (4) of §308 states that:

"Records, in whatever form they may be kept, of calls made to a municipality's E911 system shall not be made available to or obtained by any entity or person, other than that municipality's public safety agency, another government agency or body, or a private entity or a person providing medical, ambulance or other emergency services, and shall not be utilized for any commercial purpose other than the provision of emergency services."

Although the term "municipality" most often would include a town, city or village, that is not so in this instance. Section 301 of the County Law contains a series of definitions applicable to the provisions that follow, and subdivision (1) defines "municipality" to mean "any county except a county wholly contained within a city and any city having a population of one million or more persons." That being so, §308(4) applies only to counties outside of New York City and does not apply to the City itself.

Again, since §308 does not apply, the Freedom of Information Law governs rights of access. In brief, that statute 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. As we understand the facts, two of the grounds for denial are potentially relevant.

Section 87(2)(b) states that an agency may withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Clearly you could not invade your own privacy. However, it is possible that disclosure of a tape recording or transcript of a 911 call made by a person other than yourself, or perhaps related records, might result in an unwarranted invasion of that person’s privacy. To that extent, records may properly be withheld.

The other exception of significance pertains to communications between an employee of the agency in receipt of an emergency call and another public employee, i.e., a law enforcement officer or emergency services employee, both of whom would be "agency" employees. Specifically, §87(2)(g) authorizes 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. 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. In our experience, the communications at issue typically consist of factual information (i.e., fire at 210 Main St.), or perhaps an instruction to staff that affects the public, both of which would be available unless a different exception applies, such as §87(2)(b) concerning unwarranted invasions of personal privacy. On occasion, the communications may also include opinions or recommendations ("I think that a person may be hurt"), which an agency may withhold.

To the extent that you were denied access to redacted portions of the records provided, the Assistant Counsel to the New York City Fire Department correctly pointed out that you had thirty days to appeal to the Deputy Counsel. To the extent that you have received no response from the Fire Department in regards to your request for "the caller’s words re that particular 911 call", it is our opinion that your request has been constructively denied, and that you may appeal to the Deputy Counsel.

In an effort to enhance understanding of and compliance with the Freedom of Information Law, a copy of this advisory opinion will be forwarded to the Assistant Counsel and Deputy Counsel of the New York City Fire Department.

I hope that this is helpful. Should you have any further questions, please contact me directly.

Sincerely,

Camille S. Jobin-Davis
Assistant Director

CSJD:tt

cc: Elena Ferrera, Deputy Counsel
John Tsanas, Assistant Counsel