March 25, 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.
I have received your letter and the correspondence attached to it. You have asked that I engage in an “assessment of the grounds on which [your] requests” for records directed to the State Police were denied.
The records sought include “the transcript of a cell phone call made to state police by a guy [you were] involved in an accident with, and...the transcript of the radio broadcast between the officer who responded and his barracks.” The cell phone call was, according to your appeal, a 911 emergency call. You indicated that neither you nor the other driver were injured, that you exchanged insurance information with him, and then drove off. You were later arrested and charged with leaving the scene of an accident. Despite the nature of the event and the fact that you have obtained a copy of the motor vehicle accident report that identifies the other driver, the State Police denied the request, contending that “the records you seek concerns [sic] a case that is still pending adjudication” and “were compiled for law enforcement purposes and which, if disclosed, would interfere with judicial proceedings.”
From my perspective, based on the correspondence and our discussion of the incident, it is unlikely in my view that disclosure of the records sought would interfere in any way with a judicial proceeding. 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, the state’s highest court, confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, 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[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)" [89 NY2d 267, 275 (1996)].
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 complaint follow up 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 different from that cited in response to your request. 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 request, the Division of State Police has engaged in a blanket denial of access in a manner which, in my view, may be 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 that agency 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).
The provision upon which the denial is based, §87(2)(e)(i), authorizes an agency to withhold records that “are compiled for law enforcement purposes and which, if disclosed, would...interfere with law enforcement investigations or judicial proceedings...” In an Appellate Division decision that is often cited in the context of records relating to law enforcement, Pittari v. Pirro, [258 Ad2d 202 (1999)], it was stated that:
“[t]he question is whether the nature of the records sought and the timing of the FOIL request rendered those records exempt from disclosure under FOIL. The Court of Appeals, in Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 572, 419 N.Y.S.2d 467, 393 N.E.2d 463 noted:
‘[T]he purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution’” (id., 169).
In consideration of the documentation that has already been disclosed, the routine nature of the event and the relative simplicity of the proceeding, in which there is likely minimal written material and few, if any, witnesses, it is difficult to envision how disclosure could interfere with a judicial proceeding or the means by which the State Police could meet the burden of defending its denial of access.
I note, too, that it has been found that “tape recordings of certain communications broadcast over police radio” were accessible, for the agency was unable to prove that an exception to rights of access could properly be asserted [Buffalo Broadcasting Co., Inc. v. City of Buffalo, 126 AD2d 983 (1987)].
In an effort to encourage a review of the denial of your request, a copy of this opinion will be forwarded to the Division of State Police.
I hope that I have been of assistance.
Robert J. Freeman
cc: William J. Callahan