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FOIL-AO-17740

                                                                                                July 30, 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

            I have received your letter in which you seek an advisory opinion concerning the propriety of a denial of access by the City of Albany to records that you requested pursuant to the Freedom of Information Law, as well as correspondence relating to the request. 

            You sought records concerning “parking enforcement”, and “the dismissal, reduction or voiding of parking summonses (tickets).”  You specified that the request does not involve “the adjudication of parking tickets by a judge or court”, but rather records pertaining to “the administrative dismissal, reduction or voiding of parking tickets and related fines.”  The sole basis for denying access to records falling within the scope of your request that continue to exist offered by the City’s records access and appeals officers is §160.50 of the Criminal Procedure Law.  That statute, entitled “Order upon termination of criminal action in favor of the accused”, generally requires that records be sealed following the dismissal of criminal charges in favor of  an accused.  From my perspective, a careful review of §160.50 indicates that it is inapplicable in the context of your request and the nature of the records that you requested.

            The introductory language of subdivision (1) of §160.50 states in relevant part that:

 “Upon the termination of a criminal action or proceeding against a person in favor of such person...shall be sealed and the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated in favor of the accused, and...that the record of such action or proceeding shall be sealed.”

Subdivision (3) of §160.50 specifies the nature of “criminal actions or proceedings” that are considered to be terminated in favor of a person, stating that “For the purposes of subdivision one of this section, a criminal action or proceeding shall be considered terminated in favor of such person where...” certain criteria are met or events occurred.  In the following brief remarks, each of those criteria will be noted through references to paragraphs (a) through (l), and each will indicate that the sealing provisions in §160.50 do not relate to the records at issue.

(a) determinations of an appellate court;
(b) orders to dismiss accusatory instruments for various reasons following arraignment (§170.30); following arraignment and finding that evidence presented to a grand jury was insufficient or that grand jury proceeding was defective (§170.50); adjournment by a court in contemplation of dismissal upon or after arraignment (§170.55); adjournment in contemplation of dismissal in cases involving marihuana (§170.56 and §210.46); relates to felony complaint (§180.70 and §180.85); dismissal of indictment for various reasons (§210.20); adjournment in contemplation of dismissal in misdemeanor cases (§210.47);
(c) verdict of acquittal by a court;
(d) trial order of dismissal and no ensuing appeal;
(e) order setting aside verdict and no ensuing appeal;
(f) order vacating judgment for various reasons by the court that entered judgment;
(g) involves illegal detainment and unreasonable bail (Article 70, CPLR);
(h) dismissal of charge by grand jury;
(i) prosecutor’s election not to prosecute and return or destruction of fingerprints and photographs, and notification given to Division of Criminal Justice Services;
(j) following arrest, arresting police agency elects not to proceed after having forwarded copy of fingerprints to Division of Criminal Justice Services;
(k) relates to arrests under Article 220 of the Penal Law involving controlled substances; and
(l) adjournment in contemplation of dismissal for purposes of referring certain felonies to dispute resolution.

            The issuance of parking tickets does not involve criminal charges or appeals in criminal cases, or fingerprinting or the taking of photographs (mugshots).  Moreover, your request specifies that the records sought do not include those related to dismissals of parking tickets by a judge, but rather “administrative dismissal of tickets” by any City of Albany officer or employee.  In all but one of the situations described in paragraphs (a) through (l) of §160.50(3) dismissals are ordered by judges in court proceedings.  The only situation in which that would not be so pertains to paragraph (j), which deals with instances in which arrests are made and individuals’ fingerprints are taken and forwarded to the Division of Criminal Justice Services.  I do not believe that provision is relevant, for persons who are issued parking tickets are not fingerprinted, nor are fingerprints forwarded to the Division of Criminal Justice Services.

            In short, the statute upon which the City relied to justify a denial of access, §160.50 of the Criminal Procedure Law, is, in my view, inapplicable and irrelevant.  I note, too, that §155 of the Vehicle and Traffic Law specifies that “A traffic infraction is not a crime and the punishment imposed therefor shall not be deemed for any purpose a penal or criminal punishment...”

            Assuming that the Criminal Procedure Law does not serve as a basis for a denial of access, I believe that the Freedom of Information Law would govern.  In brief, that statute 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.

            From my perspective, only one of the exceptions to rights of access is pertinent to an analysis of rights of access to “dismissed tickets.”  Section 87(2)(b) authorizes an agency, such as the City of Albany, to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.”  Additionally, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy.

            I would conjecture that there are two categories of tickets that were dismissed.  The first would involve City employees acting in the performance of their duties whose vehicles were ticketed.  The second would involve all others.

            While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers and employees.  It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those persons are required to be more accountable than others.  With regard to records relating to them, the courts have found that, as a general rule, records that are relevant to their duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, supra; Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to their duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov.  22, 1977].

            In the context of this situation, if City employees received parking tickets while involved in carrying out their duties, the tickets would clearly relate to the performance of those duties, and disclosure, therefore, would not in my opinion constitute an unwarranted invasion of personal privacy.  Very simply, there would be nothing “personal” about the tickets in those instances.

            With respect to the remaining tickets that were dismissed, those pertaining to persons who are not officers or employees of the City, or to City officers or employees whose vehicles were ticketed when those persons were not involved in performing their official duties, again, the issue is whether disclosure would result in an unwarranted invasion of personal privacy.  In considering that standard, the Court of Appeals has referred to items of a highly personal or intimate nature the disclosure of which would be offensive to a reasonable person or ordinary sensibilities [see Hanig v. NYS Department of Motor Vehicles, 79 NY2d 106 (1992)].  Unlike the disclosure of items in the nature of medical information, as in the case of Hanig, which dealt with a disability, personal financial information, a social security number that could be used as a means of attempting to engage in identity theft, a parking ticket indicates little, if anything, of a personal nature.  Further, in routine circumstances in which vehicles are ticketed, records indicating the payment or non-payment of fines are and have been made available to the public, and the City of Albany has posted the “Top 100 Scofflaws” on its website, identifying those who owe the City the greatest amounts of money due to their failure to pay fines involving parking tickets.

            Returning to §160.50 of the Criminal Procedure Law, it is my understanding that the intent of that statute requiring that records be sealed when criminal charges are dismissed in favor of an accused is to avoid the stigma associated with alleged criminal activity.  The issuance or receipt of a parking ticket does not involve criminal activity, nor is there the presence of stigma associated with the possibility or allegation of criminal activity.

            In short, disclosure of the second category of records would not, in my view, rise to the level of an “unwarranted” invasion of personal privacy.

            Lastly, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access.  As stated by the Court of Appeals three decades ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2).  Thus, the agency does not have carte blanche to withhold any information it pleases.  Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908).  Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79).  The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).

            In consideration of the foregoing, I believe that the records sought must be disclosed to comply with law.  In an effort to enhance compliance and obviate the need to engage in costly and time consuming litigation, copies of this opinion will be sent to City officials.

             I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Harold Greenstein
Hon. John Marsolais
Eva M. Saketkoo