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FOIL-AO-16436

 

January 29, 2007

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.

Dear

As you are aware, I have received your letter in which you sought an advisory opinion concerning “what information police agencies are required to provide...to the news media about arrests and pending investigations.” You indicated that the police chief has refused to release records, including those indicating the blood alcohol levels of people charged with drunken driving, and “contends that such information as a defendant’s occupation, employer, eye color, weight and height is personal information that cannot be released.” You also asked what recourse there may be if an agency denies access to information that must be disclosed under the Freedom of Information Law.

In this regard, first 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 state’s highest court, the Court of Appeals, expressed its general view of the intent of the Freedom of Information Law and the obligations imposed upon agencies 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[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)" (id., 275).

Second, from my 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 [see Freedom of Information Law, §87(2)(a)].

Although arrest records are not specifically mentioned in the current Freedom of Information Law, I note that the original version of the law granted access to "police blotters and booking records" [see original Law, §88(1)(f)]. Even though reference to those records is not made in the current statute, I 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, 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)].

Third, often most relevant in the context of your inquiry 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 my 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)]. Further, 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."

Similarly, it has been held that mugshots of defendants are accessible, unless they have been sealed by statute due to the dismissal of charges. It is assumed that individuals arrested could have been seen during judicial or other proceedings (i.e., arraignments) that were open to the public. If the public can be present at or view a proceeding during which an arrestee can be identified, it is difficult to envision how a photograph of that individual could properly be withheld, notwithstanding the provisions of §87(2)(e) or §87(2)(b), which authorizes an agency to deny access when disclosure would constitute an unwarranted invasion of personal privacy.

While disclosure of mugshots might embarrass or humiliate the individuals in those photos, there are many instances in which records have been determined to be available even though they represent events or occurrences that may be embarrassing. When individuals are arrested and/or convicted, their names and other details about them are generally made available and may be published; when a public employee is the subject of disciplinary action, that person’s name and other details about him or her are accessible to the public, irrespective of whether the individuals to whom the records pertain may be embarrassed by their actions [see e.g., Daily Gazette v. City of Schenectady, 673 2d 783, (A.D. 3 Dept. 1998); Anonymous v. Board of Education for Mexico Central School District, 616 NYS 2d 867 (1994); Scaccia v. NYS Division of State Police, 520 NYS 2d 309, 138 AD 2d 50 (1988); Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981]. In short, in many cases, even though individuals may be embarrassed by particular aspects of their lives, that factor may have little or no bearing upon public rights of access to records concerning what might be considered as public events in which the public interest in disclosure outweighs an individual’s interest in privacy.

In the only decision of which this office is aware that dealt with access to mugshopt, the court determined that the mugshots regarding all persons arrested must be disclosed, unless charges were dismissed in favor of the accused. In general, when charges against an accused are dismissed or terminated in favor of the accused, the records pertaining to the event become sealed under the Criminal Procedure Law, either §160.50 or §160.55. When the records are sealed, they are exempted from disclosure under the Freedom of Information Law [§87(2)(a)]. With respect to disclosure of the mugshots of those persons against whom the charges were pending in which the records had not been sealed, the court held that the agency could not meet its burden of proving that the privacy exception could validly be asserted [Planned Parenthood of Westchester, Inc. v. Town Board of the Town of Greenburgh, 587 NYS2d 461, 463 (1992)].

Although they do not constitute law, pertinent are the “principles and guidelines” adopted by the New York Fair Trial Free Press Conference. That entity, which is chaired by the Chief Judge of the Court of Appeals, consists of members of news organizations, as well as associations of judges, chiefs of police, sheriffs and district attorneys. The principles and guidelines reflect a general agreement among its members and includes “Guidelines in Criminal Cases.” Guideline 1(a) states that “When and after an arrest is made”, the following information should be made available for publication: “The accused’s name, age, residence, employment, marital status and similar background information.”

In short, a variety of details concerning defendants are often required to be disclosed or disclosed pursuant to widely accepted guidelines, and some of the items which the Chief of Police, according to your letter, believes that he cannot release are required to be disclosed to the public based on statutory direction or judicial precedent. I note that, aside from the statutes concerning the sealing of records, there are relatively rare situations in which a law enforcement agency “cannot” disclose records. The Freedom of Information Law states that an agency “may” withhold records or portions of records in various circumstances; it is not ordinarily required to do so. The only instances in which an agency must deny access would involve the application of statutes that forbid disclosure. For instance, as you may be aware, §784 of the Family Court Act prohibits the disclosure of records pertaining to the arrest and disposition of juveniles, unless a court orders disclosure. Similarly, §50-b of the Civil Rights Law prohibits the disclosure of records that identify or tend to identify the victim of a sex offense.

Nevertheless, there may be instances in which there is a basis in the Freedom of Information Law for withholding some aspects of the kinds of records to which you referred. As indicated previously, §87(2)(e) pertains to records compiled for law enforcement purposes and authorizes a denial of access in certain circumstances. The example to which you referred involving a refusal to release the blood alcohol levels of those charged with drunken driving, depending on the facts, may be among the situations in which a denial of access would be consistent with law. If, for example, disclosure would deprive the person charged with a fair trial, I believe that a denial of access would be appropriate. However, the ability to assert that or other exceptions would be dependent on the attendant facts. As more information becomes available through judicial proceedings or the filing of records with the courts, which are generally public, the authority of a law enforcement agency to deny access often will diminish.

Other instances in which denials of access would be proper would involve the ability to withhold portions of records that may identify informants or witnesses, for example, or which if disclosed would interfere with an ongoing investigation. Again, the authority to withhold portions of records would not necessarily permit an agency to withhold the records in their entirety. Rather, to comply with law, the records must be reviewed to determine which portions, if any, may justifiably be withheld.

It is reiterated that the language of the law, judicial precedent and commonly accepted principles indicate that the kinds of information to which you referred must in most instances be disclosed.

Lastly, with respect to recourse in the event of a denial of access, §89(4)(a) of the Freedom of Information Law provides a person denied access with the right to appeal the denial. 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. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal and the ensuing determination thereon."

Section 89(4)(b) specifies that the agency has the burden of proving that the harmful effects described in the exceptions would indeed occur by means of disclosure.

In addition, I note that on August 16, 2006, legislation became effective that broadens the authority of the courts to award attorney’s fees when government agencies fail to comply with the Freedom of Information Law (S. 7011-A, Chapter 492). Under the amendments, when a person initiates a judicial proceeding under the Freedom of Information Law and substantially prevails, a court has the discretionary authority to award costs and reasonable attorney’s fees when the agency had no reasonable basis for denying access to records, or when the agency failed to comply with the time limits for responding to a request.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

Robert J. Freeman
Executive Director
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