June 23, 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 facts presented in your correspondence, unless otherwise indicated.
This is in response to your request made at a presentation given at the Erie County Central Police Services Training Academy on May 30, 2006, for an advisory opinion concerning the application of the Freedom of Information Law to records available to your police department through shared electronic databases. Apparently there are various types of county-wide shared databases consisting of law enforcement information acquired from all municipalities within a particular county, and at least one statewide database, known as the New York Statewide Police Information Network, or "NYSPIN". It is our understanding that criminal justice information is promptly made available to local police agencies through these databases, and to officers working in their patrol cars.
We have also been informed that there are written agreements between local police agencies, the New York State Police and/or the various County agencies responsible for maintaining the County-wide database, whereby the local police agencies agree not to access information in the databases except pursuant to criminal investigations.
As prescribed by Executive Law §§217-221, NYSPIN is authorized to connect with other similar state, national or international systems, and is required to collect, in addition to other information, records of felony complaints, arrest warrants, complaints of missing children, and actual or attempted abduction or molestation information. The State Police is permitted to make the basic system available for use by "any department or division of the state government and by any municipal, county, town, village, railroad or other special police department lawfully maintained by any corporation in this state..." ( Executive Law §219).
Regulations governing local access to NYSPIN, adopted by the Superintendent of the State Police, state in relevant part:
"(d) Inquiries to NYSPIN may only be made for criminal justice purposes.
(e) No printed material obtained via NYSPIN (or copies thereof) may be delivered to persons or agencies outside criminal justice except as directed by an appropriate court or other proper legal authority. Requests for printed material (or copies thereof) pursuant to the Public Officers Law, article 6 (the Freedom of Information Law) need not be delivered to persons or agencies outside criminal justice if exemptions listed under section 87, subdivision 2 (a-i) of such law apply. If you have any doubt that the Freedom of Information request is valid, assistance is available from the New York State Police, Records Access Officer (Assistant Deputy Superin tendent [sic] –Administration), Building 22, State Campus, Albany, NY 12226.
(f) All requests for information in the NYSPIN computer, the NYSPIN Operating Manual, interim NYSPIN Operating Manual revisions, and NYSPIN operational aids pursuant to the Public Officers Law, article 6 (the Freedom of Information Law) must be referred, in writing, to the Superintendent of State Police. All requests for CHRI under either the Freedom of Information Law or the Public Officers Law, article 6-A (Personal Privacy Protection Law), must be referred to the commissioner of DCJS." (9 NYCRR 486.3)
A careful reading of the regulations quoted above indicates that printed material obtained via NYSPIN is public, unless an exception to rights of access listed in paragraphs (a) through (i) of §87(2) of the Freedom of Information Law may properly be asserted. Stated differently, those materials are treated in the same manner for purposes of the Freedom of Information Law as any other agency records.
Further, according to judicial decisions, an agency’s regulations may not render records deniable or confidential, unless there is a basis for so doing pursuant to one or more of the grounds for denial appearing in the Freedom of Information Law. The first ground for denial in the Freedom of Information Law, §87 (2)(a), refers to records that may be characterized as confidential and enables an agency to withhold records that "are specifically exempted from disclosure by state or federal statute." A statute, based upon judicial interpretations of the Freedom of Information Law, is an act of the State Legislature or Congress [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)], and it has been found that agencies’ regulations are not equivalent to statutes for purposes of §87 (2)(a) of the Freedom of Information Law [see Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982) ]. Therefore, insofar as an agency’s regulations render records or portions of records deniable in a manner inconsistent with the Freedom of Information Law or some other statute, those regulations would, in our opinion, be invalid. Regulations cannot operate, in our view, in a manner that provides fewer rights of access than those granted by the Freedom of Information Law.
In addition, insofar as there may be contractual provisions which limit rights of access conferred by a statute, such as the Freedom of Information Law, we believe that they are void and unenforceable. In this regard, we offer the following comments.
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.
The Court of Appeals has held that a request for or a guarantee of confidentiality is all but meaningless; unless one or more of the grounds for denial appearing in the Freedom of Information Law may appropriately be asserted, the record sought must be made available. In Washington Post v. Insurance Department [61 NY2d 557 (1984)], the controversy involved a claim of confidentiality with respect to records prepared by corporate boards furnished voluntarily to a state agency. The Court also concluded that "just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption" (id., 567).
In a different context, in Geneva Printing Co. and Donald C. Hadley v. Village of Lyons (Supreme Court, Wayne County, March 25, 1981), a public employee charged with misconduct and in the process of an arbitration hearing engaged in a settlement agreement with a municipality. One aspect of the settlement was an agreement to the effect that its terms would remain confidential. Notwithstanding the agreement of confidentiality, which apparently was based on an assertion that "the public interest is benefited by maintaining harmonious relationships between government and its employees", the court found that no ground for denial could justifiably be cited to withhold the agreement. On the contrary, it was determined that:
"the citizen's right to know that public servants are held accountable when they abuse the public trust outweighs any advantage that would accrue to municipalities were they able to negotiate disciplinary matters with its employee with the power to suppress the terms of any settlement".
In so holding, the court cited a decision rendered by the Court of Appeals and stated that:
"In Board of Education v. Areman, (41 NY2d 527), the Court of Appeals in concluding that a provision in a collective bargaining agreement which bargained away the board of education' s right to inspect personnel files was unenforceable as contrary to statutes and public policy stated: 'Boards of education are but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public which they represent. (at p. 531).
"A similar restriction on the power of the representatives for the Village of Lyons to compromise the public right to inspect public records operates in this instance.
"The agreement to conceal the terms of this settlement is contrary to the FOIL unless there is a specific exemption from disclosure. Without one, the agreement is invalid insofar as restricting the right of the public to access."
In short, notwithstanding any contractual language or regulations to the contrary, we believe that records maintained in the databases must be disclosed to any person seeking them, to the extent required by the Freedom of Information Law.
Turning now to questions of whether particular elements of information maintained on the databases are required to be disclosed, we offer the following comments.
As mentioned above, the Freedom of Information Law is based upon a presumption of access. 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 our 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, we 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 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[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.).
With respect to the subject databases, we are not suggesting that the contents must necessarily be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).
Second, from our perspective, unless an arrest or booking record has been sealed pursuant to §160.50 of the Criminal Procedure Law, it must be disclosed. Under that statute, when criminal charges have been dismissed in favor of an accused, the records relating to the arrest ordinarily are sealed. In those instances, the records would be exempted from disclosure by statute pursuant to the Freedom of Information Law, §87(2)(a).
Although 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 our opinion, even though reference to those records is not made in the current statute, we 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 must be disclosed [see Johnson Newspapers v. Stainkamp, 61 NY 2d 958 (1984)].
With respect to the names of witnesses, complainants or victims, rights of access, or conversely, the ability to deny access would in our opinion be dependent on attendant facts. In some situations, a denial of access to the name of a complainant or victim may be appropriate. Under §50-b of the Civil Rights Law, for example, police and other public officers are prohibited from disclosing the identity of the victim of a sex offense. Additionally, §87(2)(b) and (f) of the Freedom of Information Law provide respectively that an agency may withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy" or "endanger the life or safety of any person." There are often situations in which names or other identifying details pertaining to witnesses or victims may be withheld under those provisions. Again, we are not suggesting that the name of a victim may be withheld in all circumstances, but rather in those situations in which the exceptions cited above could justifiably be asserted.
Often relevant is §87(2)(e), which permits an agency to withhold records that are:
"are compiled for law enforcement purposes and which, if disclosed, would:
i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."
The ability to deny access to records is dependent on the effects of disclosure. Only to the extent that the harmful effects described in subparagraphs (i) through (iv) would arise may §87(2)(e) be asserted.
In the context of criminal proceedings, a variety of information is routinely disclosed. An arraignment, for example, occurs during a public judicial proceeding, and information equivalent to that disclosed during an arraignment must, in our view, be disclosed by a police department or prosecutor. It has been held that once information has been disclosed during a public judicial proceeding, the grounds for denying access under the Freedom of Information Law no longer apply [see Moore v. Santucci, 151 AD2d 677 (1989)]. Similarly, when a person is arrested, taken into custody and is committed to a county jail, a record must be maintained at the jail that includes numerous details, all of which must be disclosed. Specifically, §500-f of the Correction Law, which pertains to county jails, states that:
"Each keeper shall keep a daily record, to be provided at the expense of the county, of the commitments and discharges of all prisoners delivered to his charge, which shall contain the date of entrance, name, offense, term of sentence, fine, age, sex, place of birth, color, social relations, education, secular and religious, for what any by whom committed, how and when discharged, trade or occupation, whether so employed when arrested, number of previous convictions. The daily record shall be a public record, and shall be kept permanently in the office of the keeper."
In sum, we believe that a blanket denial of access to records maintained on the databases would be inconsistent with law and that an agency in receipt of a request must review the records to ascertain the extent to which they may properly be withheld.
As indicated in our discussion, one of the challenges facing a local police agency is the ability to determine the final disposition of a particular arrest. It is our understanding that at least one county-wide database captures disposition information and blocks access to records which have been sealed pursuant to Criminal Procedure Law §160.55. In this regard, we recommend that final disposition information be incorporated into electronic databases as a matter of course, so as not to unduly burden local agency personnel with the responsibility to obtain such information manually.
Another challenge, which was subsequently raised in a related telephone conversation, is how to handle requests for a large volume of electronic records maintained over the course of a year, for example. The concern is that the request would require the review and redaction of many, many pages of records, a hugely labor-intensive project.
In this regard, the Freedom of Information Law pertains to existing records. Section 89(3) of the Law states in part that an agency need not create a record in response to a request. It is also important to note, however, that §86(4) of the Law defines the term "record" to include:
"...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
Based upon the language quoted above, if information is maintained in some physical form, it would constitute a "record" subject to rights of access conferred by the Law. Further, the definition of "record" includes specific reference to computer tapes and discs, and it was held in the early days of the Freedom of Information Law that "[i]nformation is increasingly being stored in computers and access to such data should not be restricted merely because it is not in printed form" [Babigian v. Evans, 427 NYS 2d 688, 691 (1980); aff'd 97 AD 2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS 2d 558 (1981)].
When information is maintained electronically, it has been advised that if the information sought is available under the Freedom of Information Law and may be retrieved by means of existing computer programs, an agency is required to disclose the information. In that kind of situation, the agency would merely be retrieving data that it has the capacity to retrieve. Disclosure may be accomplished either by printing out the data on paper or perhaps by duplicating the data on another storage mechanism, such as a computer tape or disk. On the other hand, if information sought can be retrieved from a computer or other storage medium only by means of new programming or the alteration of existing programs, those steps would be the equivalent of creating a new record. As stated earlier, since §89(3) does not require an agency to create a record, an agency is not required to reprogram or develop new programs to retrieve information that would otherwise be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218 (1991)].
Often information stored electronically can be extracted by means of a few keystrokes on a keyboard. While some have contended that those kinds of minimal steps involve programming or reprogramming, and, therefore, creating a new record, so narrow a construction would tend to defeat the purposes of the Freedom of Information Law, particularly as information is increasingly being stored electronically. If electronic information can be extracted or generated with reasonable effort, if that effort involves less time and cost to the agency than engaging in manual deletions, it would seem that an agency should follow the more reasonable and less costly and labor intensive course of action.
In our view, there is clearly a distinction between extracting information and creating it. If an applicant knows that an agency’s database consists of 10 items or "fields", asks for items 1, 3 and 5, but the agency has never produced that combination of data, would it be "creating" a new record? The answer is dependent on the nature of the agency’s existing computer programs; if the agency has the ability to retrieve or extract those items by means of its existing programs, it would not be creating a new record; it would merely be retrieving what it has the ability to retrieve in conjunction with its electronic filing system. An apt analogy may be to a filing cabinet in which files are stored alphabetically and an applicant seeks items "A", "L" and "X". Although the agency may never have retrieved that combination of files in the past, it has the ability to do so, because the request was made in a manner applicable to the agency’s filing system.
As in the case of incorporating final disposition information, we recommend that the electronic databases are designed to segregate confidential information, so as not to unduly burden local agency personnel with review and redaction of individual records. That recommendation is the subject of legislation that has been approved by the Senate and Assembly and will soon be transmitted to the Governor (see A. 8007/S. 4896).
To that extent, we recommend that disposition information be incorporated into the electronic databases, so that resources need not be expended tracking.
Camille S. Jobin-Davis
cc: Edmund Fitzgerald