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FOIL-AO-16341

December 14, 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.

Dear

I have received your letter and the correspondence attached to it. You have questioned the adequacy of the responses to your initial request for records made to the State Police and your appeal.

You requested police reports prepared in June, 2005 relating to an investigation of “pot growing” behind a certain address in Granville. In response to your request and appeal, you were informed that disclosure would constitute an unwarranted invasion of personal privacy, and that “disclosure of these records, which were compiled for law enforcement purposes, would interfere with a law enforcement investigation and/or any judicial proceedings”, because “the statute of limitations for this type of criminal investigation has not expired.” Both responses expressed the same grounds and even the same words to deny access.

In this regard, I offer the following comments.

First, while the regulations promulgated by the Committee on Open Government require that an agency provide a reason for an initial denial of access to records [see 21 NYCRR §1401.2(b)(4)(ii)], §89(4)(a) of the Freedom of Information Law requires that the determination of an appeal must “fully explain” the reasons for further denial. From my perspective, in consideration of the repetition, without more, of the reasons for denial of the appeal, the State Police did not “fully explain” its reasons for denying the appeal.

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 (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 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 blanket denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the New York City 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 those 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 State Police 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).

The denial of your request and appeal refer to two of the exceptions to rights of access. Section 87(2)(b) authorizes an agency to withhold records to the extent that disclosure would result in an unwarranted invasion of personal privacy. Often, as you suggested, identifying details may be deleted from records in order that a person or persons named cannot be ascertained. In this instance, if the deletion of names or other details would serve to protect against an unwarranted invasion of privacy, I believe that the State Police would be required to do so.

The other ground for denial, §87(2)(e)(i), pertains to the ability to withhold records that “are compiled for law enforcement purposes and which, if disclosed, would...interfere with law enforcement investigations or judicial proceedings...” The fact that “the statute of limitations for this type of criminal investigation has not expired” is not, in my view, determinative of the authority to deny access to records. The critical concern involves the extent to which disclosure would “interfere” with an investigation or judicial proceeding. Only in that instance may records or portions of records be withheld under the cited provision.

In short, to comply with the Freedom of Information Law, I believe that the State Police should have reviewed the records sought in their entirety to determine the extent to which the exceptions to which reference was made could properly have been asserted. If only portions of the records could justifiably have been withheld, the remainder of the records should have been made available to you.

In an effort to encourage the State Police to reconsider its determination, a copy of this response will be sent to that agency.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt
cc: William J. Callahan
Captain Laurie M. Wagner