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FOIL-AO-17505

                                                                                                January 26, 2009

 

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.

Dear Schneider

            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the Police Department of the City of Binghamton.  Please accept my apology for the delay in responding.

            Specifically, you requested records regarding a May 4, 2008 incident involving students at the State University at Binghamton, including reports and statements from certain named witnesses.  You indicated that approximately 80 pages of materials pertaining to the incident were released to the New York Post, and that “the information has since been quoted in articles in a prominent position in the Post.”  In its initial denial of access, the Department indicated that “The New York Post did in fact inadvertently receive a copy of the report due to an error by a records clerk....  Insofar as the information was inadvertently released, the city has also requested the other news agency (NY Post) refrain from any further use of said information.”    Nevertheless, the Department denied access to the records “in part based on the fact that this is a pending prosecution”, and on appeal, the City affirmed the Department’s denial, citing case law and incorporating legal rationale provided by the Broome County District Attorney’s office pertaining to §87(2)(e) of the Freedom of Information Law.

            In our opinion, although the Department may have had grounds to deny access to many of the records that you requested prior to its disclosure to the Post, because the material was released and published, the Department has essentially waived its authority to deny access, and the records must be disclosed.  In this regard, we offer the following.

            First, in our view, insofar as the records were already disclosed to a newspaper or published in a newspaper of widespread circulation, such as the New York Post, the situation can be differentiated from case law involving an inadvertent disclosure.

            Where there was an "inadvertent disclosure" of a record, it has been held that the disclosure did not create a right of access on the part of the person who viewed the record [see McGraw-Edison v. Williams, 509 NYS2d 285 (1986)].  In that case, inspection of one record was inadvertently allowed.  Upon realizing the mistake, the Department of Environmental Conservation later denied further access, except to those portions of the record that were required to be disclosed.  Relying on the intra-agency exception (§87[2][g]), the court found that the agency could continue to assert an exemption despite previous disclosure.

            Conversely, when an agency shares a record at a meeting during which anyone present could have reviewed it, it has long been our opinion that a public disclosure would have occurred and that the ability to deny access to that record would have been waived.    Further, we note that even when records ordinarily might be withheld under the Freedom of Information Law, it has been held that there is no basis for denial once the records have been presented in a public judicial proceeding.  In Moore v. Santucci, 151 AD2d 677, 543 NYS2d 103 (1989), the Court found that:

“...while statements of the petitioner, his codefendants and witnesses obtained by the respondent in the course of preparing a criminal case for trial are generally exempt from disclosure under FOIL (see, Matter of Knight v Gold, 53 AD2d 694, appeal dismissed 43 NY2d 841), once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public” [151 AD2d 677,679 (1989)].

In short, by disclosing records or witness statements in open court, a public disclosure would have already been made.  Once that occurs, unless a record is later sealed, nothing in the Freedom of Information Law would serve to enable an agency to deny access to that record.  Similarly, in our opinion, disclosure to and publication by a news media organization with a circulation of more than a million per day is a public disclosure, and the ability to later deny access to certain portions of the material has been be waived.

Second, 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 our 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, we 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[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)" [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 response to your appeal, Corporation Counsel’s Office indicated that “it has been and continues to be the practice of the City to refuse to release documents that are the subject of a pending judicial proceeding.”  This type of blanket denial of access, in our view, is equally inappropriate as that described in Gould.  Under this analysis, we are not suggesting that the records sought should have been disclosed in full.  Rather, based on the direction given by the Court of Appeals in this and other decisions, the records must be reviewed by the 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 Gould: "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).


            Third, as noted previously, the provisions upon which the denial is based, §87(2)(e)(i) and (ii), authorize 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...[or] deprive a person of a right to a fair trial or impartial adjudication...”.  Whether or the extent to which these provisions would apply today are unknown to us at this time.

            Certainly, while we disagree with the Department’s blanket denial of access, in light of the previous disclosure and publication, the passage of time may have eliminated many of the objections that the Department raised in response to the appeal.  At this time, without knowing whether a trial or trials have occurred, and/or the outcome of such proceedings, it is difficult to offer precise advice concerning rights of access to records to records not disclosed to the news media.

            On behalf of the Committee on Open Government, we hope that this is helpful to you. 

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:jm

cc: Hon. Matthew T. Ryan, Mayor
Shannon K. Starowicz, Assistant Corporation Counsel
Captain David Eggleston
Hon. Gerald F. Mollen, District Attorney