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FOIL-AO-16181

October 6, 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, unless otherwise indicated.

Dear

I have received your letter in which you requested an advisory opinion concerning rights of access to "a copy of the taped interview that Bethlehem Police conducted of Christopher Porco."

The events associated with Mr. Porco were widely reported and culminated in a jury trial in which he was found guilty of the murder of his father and the attempted murder of his mother. Nevertheless, the Office of the Albany County District Attorney denied your request, contending that:

"The request seeks information related to an ongoing, pending matter. Statements of a defendant, co-defendant and/or witnesses obtained in preparation for trial are exempt, Matter of Knight v. Gold, 53 AD2d 694. Court records, motions and transcripts are similarly exempt."

The trial judge had determined that the tape was not admissible as evidence.

Following the denial of your request, you appealed and suggested that the trial judge indicated that the recording should be made available to the news media. Despite your efforts to gain confirmation of your contention, you apparently did not receive any written confirmation from the judge. In response to the appeal, Paul F. Collins, the person designated to determine appeals directed that:

"...within five business days from receipt of this letter, the Parties are requested to respond, in writing, as follows: first, WNYT is requested to provide either a copy of the June 15th order, or a copy of pertinent sections of the transcript of the proceeding in which the alleged order issued; second, both WNYT and the D.A. are requested to advise as to whether portions of the record requested were presented or revealed, in any manner whatsoever, in a court proceeding open to the public, and if so, to further provide a description of the portions revealed; finally, the D.A. is requested to specifically address and articulate a position with regard to the alleged June 15th order, and, to provide a particularized articulation of specific exemption(s) claimed."

As of the date of your letter to this office, no additional information of substance had been submitted in accordance with the direction provided by Mr. Collins.

In this regard, I offer the following comments.

First, although I believe that Mr. Collins clearly sought to resolve the matter fairly, his response, in my view, was inconsistent with the direction found in §89(4)(a) of the Freedom of Information Law concerning the right to appeal a denial of a request for a record or records. That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person thereof designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

While nothing in the language quoted above precludes a person denied access from offering facts or arguments encouraging disclosure, there is no requirement that he or she do so. Rather, the affirmative obligations imposed by §89(4)(a) involve an agency’s duty to render a determination within ten business days of the receipt of an appeal by taking one of two courses of action: to grant access to the records, or to fully explain in writing the reasons for further denial. Neither of those actions was taken. That being so, I believe that your appeal may be deemed to have been denied and that you may, should you choose to do so, seek judicial review of the denial by initiating a proceeding under Article 78 of the Civil Practice Law and Rules.

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

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 different from that cited 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.).

In the context of your request, the Office of the District Attorney has engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate. I am not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by that agency 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).

In short, I believe that the blanket denial of the request was inconsistent with law. The decision upon which the denial is based, Knight v. Gold, supra, was rendered in 1976, under provisions of the Freedom of Information Law as originally enacted. That statute was repealed and replaced with the current Freedom of Information Law, which became effective on January 1, 1978. It is noted that the original statute indicated that "investigatory files compiled for law enforcement purposes" could be withheld [see original Law, formerly §88(7)(d), Public Officers Law]. In contrast, the current provision pertaining to records compiled for law enforcement purposes, §87(2)(e) limits the ability of an agency to deny access to those instances in which disclosure would result in some sort of harm. Specifically, §87(2)(e) permits an agency to deny access to records that:

"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 provision quoted above indicates that records might justifiably be withheld in certain circumstances, but that those same records may later be accessible, for the harmful effects of disclosure may have, in essence, disappeared. If you had requested the records at issue soon after the event or at any time prior to the trial, it is likely that disclosure would have interfered with an investigation or judicial proceeding or deprived the defendant of the right to a fair trial. At that time, the records could likely have been properly withheld under subparagraphs (i) and (ii). However, because the trial, a lengthy proceeding involving several weeks, the testimony of dozens of witnesses and the introduction of scores of items into evidence, resulted in a guilty verdict, the harmful effects of disclosure described in §87(2)(e) would no longer arise.

In an Appellate Division decision that is often cited in the context of records relating to law enforcement, Pittari v. Pirro, [258 Ad2d 202 (1999)], it was stated that:

"[t]he question is whether the nature of the records sought and the timing of the FOIL request rendered those records exempt from disclosure under FOIL. The Court of Appeals, in Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 572, 419 N.Y.S.2d 467, 393 N.E.2d 463 noted:

‘[T]he purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution’" (id., 169).

The timing in this instance is clearly different from that in Pittari. As I understand the matter, the defendant in that case sought records under the Freedom of Information Law prior to discovery, for the court found that "[i]f a criminal proceeding is pending, mandating FOIL disclosure would interfere with the orderly process of disclosure in the criminal proceeding set forth in CPL article 240" (id., 171). In contrast, you have requested records after conviction and the conclusion of the proceedings. Consequently, the harm sought to be avoided by the court in Pittari is not a consideration, and §87(2)(e) in my view cannot validly serve as a basis for a denial of access.

Lastly, the only exception to rights of access likely to be pertinent in determining rights of access at this juncture in my opinion would be §87(2)(b), which authorizes an agency to deny access insofar as disclosure would constitute "an unwarranted invasion of personal privacy." In consideration of the disclosures made over the course of months and during the trial regarding the defendant, it appears unlikely that disclosure would result in an unwarranted invasion of his privacy. However, the records might include references to others, and it is possible that disclosure of those portions of the records would, if disclosed, result in an unwarranted invasion of their privacy. To that extent, I believe that those portions may be redacted, followed by the disclosure of the remainder.

I note, too, that while the records at issue were prepared by an agency, the Town of Bethlehem Police Department, the Court of Appeals rejected a claim by the New York City Police Department that similar records could be withheld under §87(2)(g) concerning "intra-agency" materials. In Gould, the Court determined that the exception is intended to deal with internal governmental communications, and that statements made by members of the public, such as the defendant in this instance, fell beyond the scope of that exception. Further, although the courts are not subject to the Freedom of Information Law, it has been held by the Court of Appeals that when records emanating from a court come into the possession of an agency, such as a police department or the office of a district attorney, they constitute agency records falling within the coverage of the Freedom of Information Law [Newsday v. Empire State Development Corp., 98 NY2d 359 (2002)].

In an effort to enhance compliance with and understanding of the Freedom of Information Law, and to attempt to avoid the initiation of litigation, copies of this opinion will be forwarded to Mr. Collins and the Office of the District Attorney.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Paul M. Collins
Hon. David Soars
Bradley A. Sherman