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FOIL-AO-16715

 

August 6, 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

I have received your letter and the correspondence attached to it. Please accept my apologies for the delay in response.

You have sought an advisory opinion concerning the propriety of a request made pursuant to the Freedom of Information Law to the Suffolk County Police Department concerning “the total cost that was expended by the SCPD during Suffolk County Executive Steve Levy’s State of the County address on February 7, 2007....” Specifically, you requested:

“...all documents related to the monetary expenses of that event, including overtime expenditures, costs incurred by having bomb squad technicians and bomb-sniffing dogs on the scene, and the cost of replacing officers who would otherwise be stationed at headquarters or out on the street if they were not at the event. We would also like to know the total number of law enforcement officers that were present at the county executive’s address, as well as their specific functions, including those who were directing traffic.”

In response to the request, the County provided the aggregate cost of overtime and indicated that it “does not maintain reflecting a breakdown of non-overtime costs for officers on assignments.” All other records falling within the scope of your request were withheld pursuant to §87(2)(f), which authorizes an agency to withhold records insofar as disclosure “could endanger the life or safety of any person.”

You appealed the denial and were informed that a variety of the information sought is not maintained by the County, such as the cost of having bomb squad technicians and bomb-sniffing dogs at the scene, the cost of replacing officers who otherwise would have been stationed elsewhere, or a breakdown of non-overtime costs for officers on assignment.

In this regard, first, the Freedom of Information Law pertains to existing records, and §89(3) states in part that an agency is not required to create a record in response to a request. Therefore, insofar as the information sought does not exist in the form of a record or records, the County would not be obliged to prepare new records on your behalf. I note that when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search." If you consider it worthwhile to do so, you could seek such a certification.

Second, to the extent that records falling within the scope of your request do exist, 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.

As indicated in both the initial response and the determination of your appeal, one of the exceptions to rights of access, §87(2)(f), authorizes an agency to withhold records to the extent that disclosure “could endanger the life or safety of any person.” In your appeal, you emphasized that you were seeking “records regarding the number of police officers who were present for the State of the County Address, as well as their specific functions, and expressed the understanding that disclosure of information “about future staffing may be considered a danger.” The determination of your appeal referred to that contention, stating that similar events “are held by the County at least once a year”, and that, even though the State of County Address had already occurred, “the details regarding security for this particular event, if disclosed, could impair the effectiveness of the security plan and compromise the safe and successful operation of similar events.”

In numerous situations in which the application of §87(2)(f) is at issue, a primary consideration involves the degree of detail contained in the records. For instance, there is unquestionably an interest in ensuring a safe supply of water for the public, and proposals have been made, primarily in other jurisdictions, to require that maps indicating the location of water supplies be kept confidential. That kind of proposal is, in my view, overly broad and largely unenforceable. I can see the Hudson River from my office, and Reservoir Road is likely close to a reservoir. Maps that can purchased at any number of locations contain information of that nature. On the other hand, if a map is so detailed that it indicates the location of certain valves, places where terrorists or others could deposit poisons or chemical or biological agents, perhaps it could be contended that there is a reasonable likelihood that disclosure, due to the degree of detail, could endanger life or safety.

In the context of your request, if you sought details concerning the placement of police officers or others involved in security, or the number of those persons stationed in specific locations, it might be appropriately contended that disclosure could endanger life or safety if indeed similar events will occur in the future. Nevertheless, your request in my view involves records containing minimal detail, i.e., the number of police officers who participated and their functions. It would be unlikely in my opinion that disclosure, for example, of the number of officers involved in directing traffic, particularly without details concerning the location of their placement, could endanger life or safety in relation to similar events that have yet to occur.

In short, I believe that the denial by the County is overbroad and that it could not be demonstrated that there is a reasonable likelihood that the minimal details that you are seeking could endanger life or safety.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Rachael C. Anello