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FOIL-AO-15687

December 9, 2004

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

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 my opinion concerning the propriety of a denial of access to records by the Nassau County Police Department.

Citing the Freedom of Information Law, you requested "copies of all documents held by the Nassau County Police Department pertaining to the arrest on March 15, 2002, of Louis Sito of 308 Richmond Road, Douglas Manor, NY on charges of driving while impaired and speeding." Sgt. Thomas C. Krumpter denied the request on the ground that disclosure would constitute "an invasion of personal privacy pursuant to Section 87(2)(b) of the New York State Public Officers Law."

From my perspective, unless the records were sealed pursuant to law, the response by the Department was inconsistent with law. In this regard, I offer the following comments.

First and most importantly, 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 state’s highest court, the Court of Appeals, expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [89 NY2d 267 (1996)], 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)" (id., 275).

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 separate from that to which allusion was made 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.).

Second, in my view, unless the arrest or booking records have been sealed pursuant to §§160.50 of 160.55 of the Criminal Procedure Law, they must be disclosed. Under §160.50, when criminal charges have been dismissed in favor of an accused, the records relating to the arrest ordinarily are sealed. Under §160.55, if a charge of a felony or misdemeanor is reduced to a violation, although the records relating to the event in possession of agencies, such as a police department or office of a district attorney, are sealed, they remain available from the court in which the matter was determined. I note, however, that that sealing requirement does not apply in the case of a charge of driving while impaired, and that a record of such an arrest is not sealed unless the charge is fully dismissed.

While arrest records are not specifically mentioned in the current Freedom of Information Law, the original Law granted access to "police blotters and booking records" [see original Law, §88(1)(f)]. In my opinion, even though reference to those records is not made in the current statute, I believe that such records continue to be available, for the present law was clearly intended to broaden rather than restrict rights of access. Moreover, it was held by the Court of Appeals several years ago that, unless sealed under §160.50 of the Criminal Procedure Law, records of the arresting agency identifying those arrested, i.e., booking records, must be disclosed [see Johnson Newspapers v. Stainkamp, 61 NY 2d 958 (1984)]. I point out that the decision rendered by the Court of Appeals dealt specifically with arrests for speeding.

Third, the provision of to which Sgt. Krumpter referred, §87(2)(b) of the Freedom of Information Law, does not authorize an agency to deny access when disclosure would result in "an invasion of privacy"; rather, it refers to the ability to deny access when disclosure would result in an "unwarranted" invasion of personal privacy. That being so, there are numerous situations in which disclosure would constitute a permissible invasion of personal privacy, and that is generally so in the case of arrest or booking records. If charges are dismissed and the records are sealed pursuant to the Criminal Procedure Law, the records would be exempted from disclosure by statute in accordance with §87(2)(a) of the Freedom of Information Law.

Lastly, unless sealed, the records sought would in my opinion be available in great measure, if not in their entirety. The only portions of such records that might be withheld, depending on the facts and circumstances, would involve the identities of witnesses, for example. If the identities of witnesses have not yet been disclosed or are not part of a public court record, those portions of the records might be deleted on the ground that disclosure would result in an unwarranted invasion of personal privacy pertaining to those persons.

I hope that I have been of assistance. A copy of this response will be sent to Sgt. Krumpter.

RJF:jm

cc: Sgt. Thomas C. Krumpter