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FOIL-AO-16791

 

September 20, 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 and the materials relating to it. You have sought an advisory opinion concerning a “blanket denial” of a request for records of the City of Albany relating to an accident leading to the death of a former City police officer, Kenneth Wilcox.

The records sought include:

“• Public Safety Officers’ Death Form completed by the head of APD and or their designee.

• Detailed statement of circumstances from the initiation of the incident to the pronouncement of the officers’ death.

• Investigation, incident and accident reports.

• Death certificate.

• Autopsy report or a statement from the head of the APD or his designee explaining that no autopsy was performed.

• Toxicology report or a statement from the head of APD or the medical examiner explaining that no analysis was completed.”

It is noted that, “in order to avoid unnecessary delay and litigation”, you suggested in your request that there would be no objection to the redaction of personal information pertaining to witnesses or others, such as social security numbers, residence addresses or dates of birth.

The City denied the request in its entirety based on “Civil Rights Law §50-a, Public Officers Law §87(2)(b), (2)(e)(iv), and (2)(g), Public Health Law §4173 and §4174, and County Law §677...” Following the receipt of your letter, a determination of your appeal was sent to this office, and the appeals officer, with no additional detail, sustained the initial denial for the same reasons as those specified by the records access officer.

Based on the language of the Freedom of Information Law and judicial precedent, I believe that the City’s response to your request is inconsistent with law. In this regard, I offer the following comments.

First 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, 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[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 that referenced in response to your requests. 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 requests, 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 blanket denials of your requests indicate 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 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 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 determination prepared by the appeals officer merely reiterates the reasons for denial offered by the records access officer; it clearly did not “fully explain” the reasons for further denial.

Second, I do not believe that §50-a of the Civil Rights Law could properly have been asserted as a basis for a denial of access. That statute provides, in brief, that personnel records pertaining to police officers that “are used to evaluate performance toward continued employment or promotion” are confidential and cannot be disclosed absent consent by the police officer who is subject of the records or pursuant to court order. Because the officer involved died as a result of the accident, the records that you requested would not be used to evaluate continued employment or promotion. That being so, §50-a of the Civil Rights Law is, in my view, irrelevant and cannot serve as a means of denying access [see Village of Brockport v. Calandra, 745 NYS2d 662, 191 Misc.2d 718 (2002; aff’d 758 NYS2d 877, 305 AD2d 973 (1988)].

I note, too, that except in unusual circumstances, motor vehicle accident reports prepared by police agencies are in my opinion available under both the Freedom of Information Law and §66-a of the Public Officers Law. Section 66-a states that:

"Notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provision of any city charter, all reports and records of any accident, kept or maintained by the state police or by the police department or force of any county, city, town, village or other district of the state, shall be open to the inspection of any person having an interest therein, or of such person's attorney or agent, even though the state or a municipal corporation or other subdivision thereof may have been involved in the accident; except that the authorities having custody of such reports or records may prescribe reasonable rules and regulations in regard to the time and manner of such inspection, and may withhold from inspection any reports or records the disclosure of which would interfere with the investigation or prosecution by such authorities of a crime involved in or connected with the accident."

The Freedom of Information Law is consistent with the language quoted above, for while accident reports are generally available, §87(2)(e)(i) of that statute states in relevant part that records compiled for law enforcement purposes may be withheld to the extent that disclosure would "interfere with law enforcement investigations or judicial proceedings." Further, the Court of Appeals has held that a right of access to accident reports "is not contingent upon the showing of some cognizable interest other than that inhering in being a member of the public" [Scott, Sardano & Pomeranz v. Records Access Officer, 65 NY 2d294, 491 NYS2d 289, 291 (1985)]. Therefore, unless disclosure would interfere with a criminal investigation, an accident report would be available to any person, including one who had no involvement in an accident.

There is no indication that any crime was committed in relation to the accident that resulted in the officer’s death. That being so, I believe that the accident report in this instance must be disclosed in its entirety to comply with §66-a of the Public Officers Law.

The denials by the City also cited §87(2)(b) concerning the ability to withhold records or portions of records the disclosure of which would constitute “an unwarranted invasion of personal privacy.” A great deal of information concerning the deceased officer’s life and death has been disclosed and widely publicized in relation to the accident as well as other of his activities. The more that information is disclosed to the public, less is the ability of the City to withhold records pertaining to him. While some details relating to the officer might properly be withheld, it has been held in a variety of circumstances that public employees enjoy less protection of privacy than others, and that items relating to the performance of their duties would, if disclosed, result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD2d 309 (1977), aff'd 45 NY2d 954 (1978); Sinicropi v. County of Nassau, 76 AD2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS2d 309, 138 AD2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY2d 562 (1986)]. Therefore, again, a blanket denial of access to personally identifiable information is in my opinion unjustifiable.

Also cited is §87(2)(e)(iv), which authorizes an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would...reveal criminal investigative techniques or procedures, except routine techniques and procedures."

In the leading decision involving that exception, it has been held that the purpose is to prevent violators of the law from being apprised of nonroutine procedures by which law enforcement officials gather information, specifying that:

“The Freedom of Information Law was not enacted to furnish the safecracker with the combination to the safe' (id., at 573, 419 N.Y.S.2d 467, 393 N.E.2d 463). '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 [law enforcement] personnel***” [Fink v. Lefkowitz, 47 NY2d 567, 572 (1979)].

Under the circumstances, it seems unlikely that the disclosure of scientific or laboratory test results or the investigative techniques or procedures employed in relation to the accident would enable potential lawbreakers to evade detection or encourage criminal activity. If that is so, §87(2)(e)(iv) would not serve as a basis for denying access.

The City also referred to §87(2)(g) in its denial. That provision pertains to communications between or among officers and employees of state and local agencies. Specifically, it permits an agency to may 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 our view be withheld.

One of the contentions offered by the New York City Police Department in Gould v. New York City Police Department was that certain reports could be withheld because they were not final. The Court of Appeals rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][111]). However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [99 NY2d 267, 276 (1996)].

The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i). In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][I]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182) id., 276-277).]

In addition, in a situation in which opinions and factual materials were “intertwined” within intra-agency materials, Ingram v. Axelrod, a decision cited by the Court in Gould rendered by the Appellate Division, Third Department, indicated that:

"Respondent, while admitting that the report contains factual data, contends that such data is so intertwined with subject analysis and opinion as to make the entire report exempt. After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 ('Chronology of Events' and 'Analysis of the Records') to be disclosable. These pages are clearly a 'collection of statements of objective information logically arranged and reflecting objective reality'. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance records, list of interviews) should be disclosed as 'factual data'. They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve to app den 48 NY2d 706). Respondents erroneously claim that an agency record necessarily is exempt if both factual data and opinion are intertwined in it; we have held that '[t]he mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion' (Matter of Polansky v Regan, 81 AD2d 102, 104; emphasis added). Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable" [90 AD2d 568, 569 (1982)]; see also Miracle Mile Associates v. Yudelson, 68 AD2d 176, 48 NY 2d 706, motion of leave to appeal denied (1979); Xerox Corporation v. Town of Webster, 65 NY2d 131, 490 NYS2d 488 (1985)].

Based on the direction provided by the courts, even though statistical or factual information contained within a record may be “intertwined” with opinions, the statistical or factual portions would in any opinion be available under §87(2)(g)(i).

The court in Gould also referred to portions of records reflective of opinions of witnesses and others and found that they could not be withheld under §87(2)(g), because that provision pertains to an “internal government exchange” between or among state and local government officers or employees, as opposed to opinions offered by persons not employed by government (id., 277).

Because federal government offices are not “agencies” falling within the definition of the term “agency” in §86(3) of the Freedom of Information Law, communications between the City and federal offices would not in my opinion fall within §87(2)(g).

Lastly, with respect to access to an autopsy report or death record, those records appear to be exempted from disclosure pursuant, respectively, to §677(3)(b) of the County Law and §4174 of the Public Health Law.

In sum, it is my opinion that many of the records sought must be disclosed in part and in some instances in their entirety to comply with law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Harold Greenstein
John C. Marsolais