October 12, 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.
I have received your letter in which you indicated that you were denied access to a copy of a photo of yourself. You appealed the denial, and the ensuing determination stated that "the photographs are attached to records with certain words and identification materials, and therefore, a photocopy of the document could be used as a photo identification, and therefore, is not allowed for security reasons." The determination also stated that the photograph itself cannot be extracted from the document.
In this regard, I offer the following comments.
There are situations in which it is possible or likely that portions of records may be both accessible and deniable, I believe that agency staff must review the records to determine which portions may justifiably be withheld. In Gould v. New York City Police Department 87 NY2d 267 (1996)], the Court of Appeals stated that a categorical denial of access to records in a circumstance of that kind 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), one of the exceptions cited in the denial of 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).
As such, I believe that the Department of Correctional Services’ contention that the photograph cannot be extracted from the document may be inconsistent with law. With the use of a photocopy machine and a piece of paper covering the portions of the record that can properly be withheld, it would appear that the photograph might be reproduced without disclosing information that might properly be withheld.
I hope that I have been of assistance.
ROBERT J. FREEMAN
BY: Janet M. Mercer