February 13, 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.
Thank you for forwarding a copy of your response to the appeal by the Tribune Company and Newsday reporter Collin Nash. Although it is not our practice to comment regarding all appeals, due to the precedent on which you rely in support of the denial, we feel compelled to offer an opinion.
Mr. Nash requested “permits, certificates of occupancy and outstanding violations or citations” with respect to various properties. His request was denied on the ground that “disclosure would interfere with ongoing investigations and/or judicial proceedings.” On appeal, your office upheld the denial of access citing §87(2)(a) of the Public Officers Law, Criminal Procedure Law §190.25 and New York News Inc. v. Office of the Special Prosecutor of the State of New York, 153 AD2d 512, 544 NYS2d 151 (1st Dept 1989). Respectfully, we offer the following comments.
As you know, 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.
That a record has been collected as part of documentation submitted or presented to a grand jury does not alter the nature or character of the record in our opinion, and we believe that you are obliged to disclose the requested records. As you note, one of the exceptions to rights of access, §87(2)(e), states that an agency may withhold 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."
To characterize permits, certificates of occupancy and citations as having been compiled for law enforcement purposes, even though they may be used in or pertinent to an investigation, would be inconsistent with both the language and the judicial interpretation of the Freedom of Information Law. The Court of Appeals has held on several occasions that the exceptions to rights of access appearing in §87(2) "are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption be articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, M. Farbman & Sons v. New York City Health and Hospitals Corp., 62 NY 2d 75, 80 (1984); Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]. Based upon the thrust of those decisions, §87(2)(e) should be construed narrowly in order to foster access. Further, there is case law that illustrates why §87(2)(e) should be construed narrowly, and why a broad construction of that provision would give rise to an anomalous result. Specifically, in King v. Dillon (Supreme Court, Nassau County, December 19, 1984), the District Attorney was engaged in an investigation of the petitioner, who had served as a village clerk. In conjunction with the investigation, the District Attorney obtained minutes of meetings of the village board of trustees. Those minutes, which were prepared by the petitioner, were requested from the District Attorney. In granting access to the minutes, the decision indicated that "the party resisting disclosure has the burden of proof in establishing entitlement to the exemption," and the judge wrote that he:
"must note in the first instance that the records sought were not compiled for law enforcement purposes (P.O.L. 87e). Minutes of Village Board meetings serve a different function...These were public records, ostensibly prepared by the petitioner, so there can be little question of the disclosure of confidential material."
Often records prepared in the ordinary course of business, which might already have been disclosed under the Freedom of Information Law, become relevant to or used in a law enforcement investigation or perhaps in litigation. In our view, when that occurs, the records would not be transformed into records compiled for law enforcement purposes. If they would have been available prior to their use in a law enforcement context, we believe that they would remain available, notwithstanding their use in that context for a purpose inconsistent with the reason for which they were prepared.
From our perspective, the requested records, by their nature, indicate that the exception concerning records "compiled for law enforcement purposes" is inapplicable. To contend that records which were generated for purposes wholly unrelated to any law enforcement investigation may now be withheld due to their use in an investigation would, in our opinion, be unreasonable and tend to subvert the purposes of the Freedom of Information Law. In support of this view, we again point to the decision rendered by the Court of Appeals in Capital Newspapers, supra. In its discussion of the intent of the Freedom of Information Law, the court found that the statute:
"affords all citizens the means to obtain information concerning the day-to-day functioning of the state and local government thus providing the electorate with sufficient information to 'make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence or abuse on the part of government officers" (id. at 566).
In the one case on which you rely to deny access, New York News, supra, summaries of testimony given to the grand jury in the Tawana Brawley case were leaked to the press prior to the release of the grand jury’s report. The Attorney General investigated the leak, obtaining sworn depositions of twenty-two staff members of the Office of the Attorney General. The court upheld the Special Prosecutor’s denial of access to the deposition transcripts, based on §87(2)(e) of the Freedom of Information Law. The court likened the deposition transcripts to records of interviews of witnesses collected during an investigation into the deaths of patients at a hospital to which the Fourth Department denied access in Hawkins v. Kurlander, 98 AD2d 14, 469 NYS2d 820 (4th Dept.1983).
Neither of these cases addresses records prepared by a municipal office in the ordinary course of business. Again, King v. Dillon, supra, a decision rendered in Nassau County clearly addresses the issue of access to records that were prepared during the ordinary course of business prior to the inception of a criminal investigation and the Nassau County Supreme Court held disclosure was required. Accordingly, it is our opinion that the requested records should be disclosed.
On behalf of the Committee on Open Government we hope this is helpful to you.
Camille S. Jobin-Davis
cc: Karen Kaiser