July 23, 2007
FROM: Robert J. Freeman, Executive Director
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.
As you are aware, I have received your letter and a variety of related materials concerning your request for records of the Town of Bedford Police Department. The request involves three unsolved murders of Guatemalan immigrants who “disappeared from the streets of Mount Kisco.”
By way of background, you wrote that Mount Kisco police are investigating the first two killings, and that Bedford police are investigating the third, “in which three Mount Kisco police officers are subjects of the investigation.” You added, significantly, in my opinion, that:
“Both departments have acknowledged multiple contacts with the most recent victim, with Mount Kisco reporting 59 arrests and about 300 incidents since about 2000, and with Bedford reporting about 60 incidents. Both departments also acknowledged contact with the victim on the night he was found mortally wounded.”
In a letter dated May 10, your request was denied, and it was stated that: “The information you are requesting has been compiled for law enforcement purposes and which if disclosed would: interfere with a law enforcement investigation or judicial proceeding...” You appealed the denial to the Town Board, which, based on minutes of a meeting of May 15, resolved that the request was “properly denied in accordance with Section 87(2)(e)(i) of the Freedom of Information Law as the present matter is an exception to the law because there is an open Bedford Police Department criminal investigation involved” and that “the information sought was compiled for law enforcement purposes, and the disclosure of this information would interfere with a pending law enforcement investigation.”
From my perspective, because the investigation is ongoing, it is likely that portions of the records sought might properly have been withheld. However, it is equally likely some elements of the records, particularly those relating 60 previous incidents, must be disclosed and that the blanket denial of access by the Town is inconsistent with law. In this regard, I offer the following comments.
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, the state’s highest court, 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[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 that 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 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 Town has 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 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 blanket denial of your request indicates a failure to comply with law. 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 response by the Town, the "law enforcement purposes" exception has been used in much the same manner.
In a related vein, §89(4)(a) of the Freedom of Information Law concerning appeals requires that a determination to uphold a denial of access must “fully explain in writing to the person requesting the record the reasons for further denial...” The Board’s determination is essentially a reiteration of the initial denial of access. In my opinion, it does not “fully explain” the reasons for further denial as required by law.
Even though the investigation regarding the three murders may be ongoing, it is likely that various records relating to those incidents must be disclosed. For instance, police blotter entries or equivalent records should be disclosed in whole or in part [Sheehan v. City of Binghamton, 59 AD2d 808 (1977)]. Records reflective of police radio communications or their equivalent are should likely be available in whole or in part [Buffalo Broadcasting Co., Inc. v. City of Buffalo, 126 AD2d 983 (1987)]. While those and others might have been compiled for law enforcement purposes, in most instances, portions of them would not if disclosed interfere with an investigation or judicial proceeding.
Further, often records prepared in the ordinary course of business, some 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 my 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, I believe that they would remain available, notwithstanding their use in that context for a purpose inconsistent with the reason for which they were prepared. Case law illustrates why §87(2)(e)(i)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."
Another example pertinent to your request might involve attendance records or time sheets pertaining to certain public employees. It has been held, for instance, that records indicating the days and dates of sick leave claimed by police officers must be disclosed [Capital Newspapers v. Burns, 67 NY2d 562(1986)]. Those and similar records, although perhaps related to or used in an investigation, are prepared in the ordinary course of business and, in my opinion, could not be characterized as having been compiled for law enforcement purposes.
With respect to the other 60 incidents in which the victim was involved, at the very least, some of the records or portions of records should be disclosed. Police blotter entries, booking records, and records indicating convictions should be in my opinion be disclosed. If copies records available from a court are maintained by the Town, they would constitute Town records subject to rights conferred by the Freedom of Information Law, even if they were prepared by a court or court officer [see Newsday v. Empire State Development Corporation, 98 NY2d 359, 746 NYS2d 855 (2002)]. I note, too, that although courts are not subject to the Freedom of Information Law, records maintained by the courts are generally accessible to the public under other provisions of law (see e.g., Judiciary Law, §255; Uniform Justice Court Act, §2019-a), unless they have been sealed or are exempted from disclosure by statute. As you may be aware, when charges are dismissed in favor of an accused, the records relating to the arrest that are maintained by a court or an agency are typically sealed pursuant to §160.50 of the Criminal Procedure Law.
In sum and to reiterate, while some of the records or portions of records that you have requested might properly have been withheld pursuant to §87(2)(e)(i) of the Freedom of Information Law, I believe that the blanket denial of your request is inconsistent with the requirements imposed by that statute.
I hope that I have been of assistance.
cc: Town Board
Lt. Robert W. Mazurak
Nancy A. Tagliafierro