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FOIL-AO-17003

                                                                                                February 20, 2008

 

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, unless otherwise indicated.

Dear :

            I have received your letter and hope that you will accept my apologies for the delay in response.

            You have questioned the propriety of a denial of access to records by the New York City Department of Transportation.  Specifically, you sought a list of “all red light traffic camera locations” in New York City, and the request was denied pursuant to §87(2)(e)(iii) of the Freedom of Information Law, on the ground that disclosure could identify a confidential source.  You wrote, however, that the locations of red light traffic locations are generally available via various websites made known when individuals receive summonses.

            In this regard, I offer the following comments.

            First, 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 expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [89 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 Department contended that certain records 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 those cited 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.).

            Second, the provision cited by the Department, §87(2)(e)(iii), authorizes an agency to withhold records compiled for law enforcement purposes when disclosure would identify a confidential source.  In my view, a confidential source typically is a person, such as an informant.  More pertinent, in my opinion is §87(2)(e)(iv), which permits an agency to withhold records compiled for law enforcement purposes when disclosure would reveal other than routine criminal investigative techniques and procedures.  The Court of Appeals focused on that provision in Fink v. Lefkowitz, 63 AD2d 610 (1978); modified in 47 NY2d 567 (1979) and found, in brief, that it is intended to enable agencies to withhold records to the extent that disclosure would enable potential lawbreakers to evade effective law enforcement.  The Court also found, however, that an agency could not justify a denial of access when disclosure would encourage compliance with or better understanding of the law.

            In this instance, disclosure of the location of the cameras would likely deter speeding or running red lights, thereby enhancing public safety and compliance with law.  If that is so, I do not believe that the Department could satisfactorily demonstrate that disclosure would result in the frames described in §87(2)(iii) or (iv) of the Freedom of Information Law.

            Lastly, through one of the websites to which you referred, I was able to obtain a list of the locations in New York City where red light cameras are located.  Assuming that information of that nature can be obtained via the internet and/or that the locations of red light cameras are indicated on summonses sent to alleged violators, I do not believe that the Department can justify its denial of your request.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:tt

cc: Appeals Officer
Penny Jackson