September 4, 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 concerning a request made pursuant to the Freedom of Information Law to the New York City Police Department for records indicating “off-limits locations” by precinct and the reason for their “off-limits” status. Police officers are forbidden to patronize those locations “because the department has determined them to be corruption-prone or having a reputation that would taint the department should an officer be seen patronizing.” You wrote that your request has not been denied, but that, based on a conversation with the Department’s records access officer, you have been led to believe that it will be rejected because “it is an internal document.”
From my perspective, that a document is characterized as “internal” is not determinative of rights of access. On the contrary, based on the language of the key provision in the law relative to the records at issue, the content of internal communications is the critical factor in ascertaining rights of access. In this instance, as I understand their content, the records sought must be disclosed.
As you are aware, 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.
The provision to which I alluded in the preceding paragraph is among the grounds for denying access to records. However, due to its structure, it often requires disclosure. Specifically, §87(2)(g) authorizes an agency, such as the Department, to withhold records that:
"are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
A list or lists identifying “off-limits” locations would in my view consist of factual information available under subparagraph (i) of §87(2)(g). I believe that it would also constitute an “instruction to staff that affects the public” indirectly that would be accessible under subparagraph (ii). Further, as you suggested, the list and the reason for certain locations being off-limits would in my opinion represent a final agency determination available under subparagraph (iii).
In sum, it appears that the records of your interest should be disclosed, notwithstanding their status as “internal.”
I hope that I have been of assistance.
Robert J. Freeman
cc: Sgt. James Russo