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.
I have received your letter in which you asked whether a police department is subject to the Freedom of Information Law and required to disclose the identities of people who make complaints if there is no arrest or charge.
In this regard, first, a police department is a unit with an agency of local government. Any such agency falls within the coverage of the Freedom of Information Law. Therefore, police department records fall within the scope of that law.
Second, by way of background, as a general matter, 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. I note that the introductory language of §87(2) refers to the ability to withhold “records or portions thereof” that fall within the grounds for denial that follow. The phrase quoted in the preceding sentence indicates that there may be instances in which a single record includes both accessible and deniable information, and that an agency is required to review a record that has been requested to determine which portions, if any, may properly be withheld.
The exception to rights of access of primary significance, in my view, pertains to the protection of privacy, and §87(2)(b) permits an agency to deny access to records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” It has consistently been advised that those portions of a complaint or other record which identify complainants may be deleted on the ground that disclosure would result in an unwarranted invasion of personal privacy. I point out that §89(2)(b) states that an "agency may delete identifying details when it makes records available." Further, the same provision contains five examples of unwarranted invasions of personal privacy, the last two of which include:
"iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or
v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."
In my opinion, what is relevant to the work of the agency is the substance of the complaint, i.e., whether or not the complaint has merit. The identity of a member of the person who made the complaint is often irrelevant to the work of the agency, and in most circumstances, I believe that identifying details may be deleted.
Also relevant is §87(2)(e)(iii), which authorizes an agency to withhold records “compiled for law enforcement purposes” to the extent that disclosure would “identify a confidential source or disclose confidential information relating to a criminal investigation.” In my view, the identity of the complainant may be deleted based on this provision when he or she is a “confidential source.” As indicated previously, I believe that a complainant’s identity may alternatively be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.
In sum, I believe that those portions of a complaint may be withheld to the extent that disclosure would identify the person who made the complaint. However, it is possible that other portions of the record should be disclosed.
I hope that I have been of assistance.