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FOIL-AO-16552

 

May 4, 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 information presented in your correspondence, unless otherwise indicated.

Dear

I have received your letter in which you sought an advisory opinion concerning a denial of a request made pursuant to the Freedom of Information Law for records maintained by the Division of State Police (hereafter “the State Police”).

The request involved “copies of all state police reports related to the Sept. 23, 2006, homicide-suicide of Wendy and James Dirk at their home...” in Cicero, NY. You wrote that State Police investigators initially indicated that “they didn’t want to disclose the records because they didn’t want to become embroiled in a dispute between two families involved in the case, and that the records access officer later denied the request in writing on the ground that disclosure would result in an “unwarranted invasion of personal privacy of those concerned.” In response to your appeal of the denial, the State Police appeals officer concurred with the response by the records access officer and added that:

“...these are records which were compiled for law enforcement purposes and which, if disclosed, would reveal non-routine criminal investigative techniques and procedures. Portions are also exempt by state statute, specifically, the County Law §677(3)(b).”

From my perspective, based on the language of the Freedom of Information Law and its judicial interpretation, particularly by the Court of Appeals, the state’s highest court, the denial of your request in its entirety is inconsistent with law. In this regard, I offer the following comments.

First, relevant to the analysis in my view is the reality that the event to which the records relate generated substantial public interest and was the subject of numerous accounts and commentaries by the news media and others. In short, the records sought pertain to an incident, which is frequently described as involving domestic violence, that was determined to have resulted in a murder and a suicide, and that is well known in the Syracuse area and beyond. In general, when more information pertaining to an incident becomes known to the public, an agency’s ability to deny access to records relating to the incident diminishes.

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 expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 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).

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 certain 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 separate from those referenced 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 vl. 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 have 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 the State Police 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 sum, I believe that the bases for the denial of your appeal do not justify a blanket denial of the request. I note that New York City Department of Investigation was criticized in Lewis v. Giuliani (Supreme Court, New York County, NYLJ, May 1, 1997) for a denial of access also based merely on a reiteration of the statutory language of an exception, stating that "DOI may not engage in mantra-like invocation of the personal privacy exemption in an effort to 'have carte blanche to withhold any information it pleases'". In this and other responses by the State Police, the privacy and the "law enforcement purposes" exceptions have been used in much the same manner.

The exception cited by both the records access and appeals officers pertains to the authority to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy” pursuant to §87(2)(b) of the Freedom of Information Law. The individuals primarily involved in the incident are both deceased, one via homicide and other via suicide. Based on the direction offered by the Court of Appeals, the specific content of records and the effects of disclosure are the key factors in determining whether or the extent to which the exception concerning privacy might properly be asserted.

The Court of Appeals dealt with issues involving the privacy of the deceased and their surviving family members for the first time in New York Times Company v. City of New York Fire Department [4 NY3d 477 (2005)]. The records in question involved 911 tape recordings of persons who died during the attack on the World Trade Center on September 11, 2001, and the decision states that:

“We first reject the argument, advanced by the parties seeking disclosure here, that no privacy interest exists in the feelings and experiences of people no longer living. The privacy exception, it is argued, does not protect the dead, and their survivors cannot claim ‘privacy’ for experiences and feelings that are not their own. We think this argument contradicts the common understanding of the word ‘privacy’.”

“Almost everyone, surely, wants to keep from public view some aspects not only of his or her own life, but of the lives of loved ones who have died. It is normal to be appalled if intimate moments in the life of one’s deceased child, wife, husband or other close relative become publicly known, and an object of idle curiosity or a source of titillation. The desire to preserve the dignity of human existence even when life has passed is the sort of interest to which legal protection is given under the name of privacy. We thus hold that surviving relatives have an interest protected by FOIL in keeping private affairs of the dead (cf. Nat’l Archives and Records Admin. V. Favish, 541 US 157 [2004])” (id., 305).

Based on the foregoing, it is clear that there may be an interest in protecting privacy in consideration of the deceased, as well as their family members. Nevertheless, the ensuing question involves the content of records, and whether the information is so intimate or personal that disclosure would result in an “unwarranted” invasion of privacy. As stated by the Court:

“The recognition that surviving relatives have a legally protected privacy interest, however, is only the beginning of the inquiry. We must decide whether disclosure of the tapes and transcripts of the 911 calls would injure that interest, or the comparable interest of people who called 911 and survived, and whether the injury to privacy would be ‘unwarranted’ within the meaning of FOIL’s exception” (id., 306).

In its focus on the nature of the calls, it was found that:

“The privacy interests in this case are compelling. The 911 calls at issue undoubtedly contain, in many cases, the words of people confronted, without warning, with the prospect of imminent death. Those words are likely to include expressions of the terror and agony the callers felt and of their deepest feelings about what their lives and their families meant to them. The grieving family of such a caller – or the caller, if he or she survived – might reasonably be deeply offended at the idea that these words could be heard on television or read in the New York Times.

“We do not imply that there is a privacy interest of comparable strength in all tapes and transcripts of calls made to 911. Two factors make the September 11 911 calls different.

“First, while some other 911 callers may be in as desperate straits as those who called on September 11, many are not. Secondly, the September 11 callers were part of an event that has received and will continue to receive enormous - - perhaps literally unequalled - - public attention. Many millions of people have reacted, and will react, to the callers’ fate with horrified fascination. Thus it is highly likely in this case - - more than in almost any other imaginable - - that, if the tapes and transcripts are made public, the will be replayed and republished endlessly, and that in some cases they will be exploited by media seeking to deliver sensational fare to their audience. This is the sort of invasion that the privacy exception exists to prevent” (id.).

As I view the direction offered by the Court of Appeals, the extent to which the contents of records are indeed intimate and personal is the key factor in ascertaining whether disclosure would result in an unwarranted invasion of personal privacy. From my perspective, the fact of a death is itself not intimate. However, to the extent that the records include information that “would ordinarily and reasonably be regarded as intimate, private information”, it has been held that disclosure would constitute an unwarranted invasion of personal privacy [see Hanig v. Department of Motor Vehicles, 79 NY2d 106, 112 (1992)].

In consideration of the details that have already been published and made widely known to the public, it seems unlikely that records or portions of records pertaining directly to either of the deceased persons would, if disclosed, constitute an unwarranted invasion of personal privacy. It is possible, however, that some records falling within the scope of your request may identify others, such as family members or persons interviewed by the State Police. In those instances, depending on their contents, i.e., if they are indeed intimate, those records or portions thereof, such as personally identifying details, might properly be redacted prior to disclosure of the remainder of the records.

The other exception upon which the State Police relied involves records compiled for law enforcement purposes which, if disclosed, would “reveal non-routine criminal investigative techniques and procedures” pursuant to §87(2)(e)(iv). As I understand the facts attending the event, the investigation ended quickly, for it was determined quickly that there was a homicide and suicide. While the event might not have been characterized as “routine”, it seems unlikely that the entirety of the records compiled or acquired by the State Police falling within the scope of §87(2)(e) would involve “non-routine” criminal investigative techniques or procedures.

The leading decision focusing on §87(2)(e)(iv), Fink v. Lefkowitz, involved access to a manual prepared by a special prosecutor that investigated nursing homes, in which the Court of Appeals held that:

"The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised the nonroutine procedures by which an agency obtains its information (see Frankel v. Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the 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.

"To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed. Such information in the hands of the public does not impede effective law enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements (see Stokes v. Brennan, 476 F2d 699, 702; Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795; Davis, Administrative Law [1970 Supp], section 3A, p 114).

"Indicative, but not necessarily dispositive of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel (see Cox v. United States Dept. of Justice, 576 F2d 1302, 1307-1308; City of Concord v. Ambrose, 333 F Supp 958)."

In applying those criteria to specific portions of the manual, which was compiled for law enforcement purposes, the Court found that:

"Chapter V of the Special Prosecutor's Manual provides a graphic illustration of the confidential techniques used in a successful nursing home prosecution. None of those procedures are 'routine' in the sense of fingerprinting or ballistic tests (see Senate Report No. 93-1200, 93 Cong 2d Sess [1974]). Rather, they constitute detailed, specialized methods of conducting an investigation into the activities of a specialized industry in which voluntary compliance with the law has been less then exemplary.

"Disclosure of the techniques enumerated in those pages would enable an operator to tailor his activities in such a way as to significantly diminish the likelihood of a successful prosecution. The information detailed on pages 481 and 482 of the manual, on the other hand, is merely a recitation of the obvious: that auditors should pay particular attention to requests by nursing homes for Medicaid reimbursement rate increases based upon projected increase in cost. As this is simply a routine technique that would be used in any audit, there is no reason why these pages should not be disclosed" (id. at 573).

As the Court of Appeals has suggested, to the extent that the records in question include descriptions of investigative techniques which if disclosed would enable potential lawbreakers to evade detection or endanger the lives or safety of law enforcement personnel or others [see also, Freedom of Information Law, §87(2)(f)], a denial of access would be appropriate. I would conjecture, however, that not all of the investigative techniques or procedures employed in relation to the incident and the ensuing investigation could be characterized as "non-routine", and that it is unlikely that disclosure of each aspect of the records would result in the harmful effects of disclosure described in Fink. In short, to the extent that disclosure would enable a potential lawbreaker to tailor his or her activities in a manner that would enable that person or others to evade effective law enforcement or detection, the records could, in my opinion, justifiably be withheld. If that would not be so, however, I do not believe that the provision upon which the State Police relied to deny access would apply.

Lastly, the denial by the State Police also refers to §677(3)(b) of the County Law. That provision pertains to records, such as autopsy reports, prepared by a coroner or medical examiner and states that they are accessible as of right only to a district attorney and the next of kin of the deceased. While I agree that those records are specifically exempted from disclosure by statute [see Freedom of Information Law, §87(2)(a)], since your request involved “state police reports”, I do not believe that the records subject to that statute are included in your request.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: William J. Callahan
Captain Laurie M. Wagner