January 27, 2006
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 Mr. Peterson:
I have received your letter and hope that you will accept my apologies for the delay in response. You described requests made to the New York City Police Department for "records relating to reported rapes...which would not tend to identify the victim(s) of such crimes" covering "the time frame between January 1, 1983 to December 31, 1985" in the area of Central Park in Manhattan.
In consideration of the information presented, I offer the following comments.
First, it is emphasized that the Freedom of Information Law pertains to existing records. Because the events that are the subject of your request occurred more than twenty years ago, it is likely that many records that once existed have been legally destroyed. In those instances, the Freedom of Information Law is inapplicable.
Second, you discussed the specificity of your request. Based on the judicial interpretation of the Freedom of Information Law, specificity may not be the key factor in determining the propriety of a request. By way of historical background, when the Freedom of Information Law was initially enacted in 1974, it required that an applicant request "identifiable" records. Therefore, if an applicant could not name the record sought or "identify" it with particularity, that person could not meet the standard of requesting identifiable records. In an effort to enhance its purposes, when the Freedom of Information Law was revised, the standard for requesting records was altered. Since 1978, §89(3) has stated that an applicant must merely "reasonably describe" the records sought. I point out that it has been held by the Court of Appeals that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].
The Court in Konigsberg found that the agency could not reject the request due to its breadth and also stated that:
"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).
In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.
While I am unfamiliar with the record keeping systems of the New York City Police Department, to the extent that the records sought can be located with reasonable effort, I believe that your requests would have met the requirement of reasonably describing the records. On the other hand, if requested records, due to the nature of an agency’s filing or record-keeping system, cannot be found with reasonable effort, the applicant in my view would not have reasonably described the records sought. In short, an agency is not required to search for the needle in the haystack, even if it is known that the needle is somewhere within the haystack.
Lastly, reference was made to §50-b of the Civil Rights Law. Subdivision (1) of §50-b states that:
"The identity of any victim of a sex offense, as defined in article one hundred thirty or §255.25 of the penal law, shall be confidential. No report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim except as provided in subdivision two of this section."
The initial ground for denial in the Freedom of Information Law, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." Section 50-b exempts records identifiable to a victim of a sex offense from disclosure, and consequently, the Freedom of Information Law in my view provides no rights of access to those records.
As you are likely aware, the Freedom of Information Law generally requires agencies to review records to determine which portions, if any, fall within one or more of the grounds for a denial of access appearing in §87(2). Following such review, agencies are required to make appropriate redactions and disclose the remainder of the records. However, the Court of Appeals held more than twenty years ago that:
"...[t]he statutory authority to delete identifying details as a means to remove records from what would otherwise be an exception to disclosure mandated by the Freedom of Information Law extends only to records whose disclosure without deletion would constitute an unwarranted invasion of personal privacy, and does not extend to records excepted in consequence of specific exemption from disclosure by State or Federal statute" [Short v. Board of Managers, 57 NY2d 399, 401 (1982)].
Based on the specific language of §50-b of the Civil Rights Law, in a manner consistent with Short, the Court of Appeals in Fappiano v. New York City Police Department [95 NY2d 738 (2001)] held that any record maintained by a public officer or employee that tends to identify the victim of a sex offense must be withheld in its entirety, except as provided in subdivision (2) of that statute. Similarly, in Karlin v. McMahon, the Court found that "the police are not obligated to provide the records even though redaction might remove all details which ‘tend to identify the victim’" [96 NY2d 842 (2001)]. Concurrently, however, the Court in Fappiano indicated that those records which if disclosed would not identify or tend to identify the victim of a sex offense do not fall within §50-b. In those instances, I believe that access to the Department’s records would be governed by the Freedom of Information Law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Jonathan David