August 13, 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.
I have received your letter and the materials attached to it, and I hope that you will accept my apologies for the delay in response.
You have questioned the propriety of a denial of your request “for a list of all police cars equipped with a dashboard video camera” by the Town of Ramapo. In response to both your initial request and the ensuing appeal, you were informed that no such list exists, and that if it did, the Town would deny access on the basis of §87(2)(e)(i) and (iv) of the Freedom of Information Law.
In this regard, I offer the following comments.
First, the Freedom of Information Law pertains to existing records, and §89(3)(a) states in part that an agency is not required to create a record in response to a request. If the Town does not maintain a list of police vehicles equipped with dashboard video cameras, it is not required to prepare a list on your behalf. Rather than seeking a list, is it suggested that you request records or portions of records that identify police vehicles equipped with a dashboard video camera in 2009.
Second, insofar as that information appears in records, I believe that it must be disclosed. As a general matter, 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.
The provisions cited by the Town authorize an agency to deny access to records compiled for law enforcement purposes which, if disclosed, would “(i) interfere with law enforcement investigations or judicial proceedings...(iv) reveal criminal investigative techniques or procedures, except routine techniques and procedures.” From my perspective, it could not be demonstrated that a disclosure that merely identifies police vehicles equipped with dashboard video cameras, without more, would interfere with any law enforcement investigation or judicial proceeding.
I point out that the courts have interpreted the Freedom of Information Law in a manner that fosters public access. The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY 2d 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[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).
The Court offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, directing that:
"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents” (id.).
The leading decision concerning the application §87(2)(e)(iv) concerning investigative techniques and procedures was cited in Gould. Fink v. Lefkowitz [47 NY2d 567 (1979)] involved access to a manual prepared by a special prosecutor that investigated nursing homes in which the Court of Appeals held that:
"The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised the nonroutine procedures by which an agency obtains its information...
"To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed. Such information in the hands of the public does not impede effective law enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements (see Stokes v. Brennan, 476 F2d 699, 702; Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795; Davis, Administrative Law [1970 Supp], section 3A, p 114).
"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 agency personnel (see Cox v. United States Dept. of Justice, 576 F2d 1302, 1307-1308; City of Concord v. Ambrose, 333 F Supp 958)."
In applying those criteria to specific portions of the manual, which was compiled for law enforcement purposes, the Court found that:
"Chapter V of the Special Prosecutor's Manual provides a graphic illustration of the confidential techniques used in a successful nursing home prosecution. None of those procedures are 'routine' in the sense of fingerprinting or ballistic tests (see Senate Report No. 93-1200, 93 Cong 2d Sess ). Rather, they constitute detailed, specialized methods of conducting an investigation into the activities of a specialized industry in which voluntary compliance with the law has been less then exemplary.
"Disclosure of the techniques enumerated in those pages would enable an operator to tailor his activities in such a way as to significantly diminish the likelihood of a successful prosecution. The information detailed on pages 481 and 482 of the manual, on the other hand, is merely a recitation of the obvious: that auditors should pay particular attention to requests by nursing homes for Medicaid reimbursement rate increases based upon projected increase in cost. As this is simply a routine technique that would be used in any audit, there is no reason why these pages should not be disclosed" (id. at 573).
The use of dashboard video cameras in police vehicles is widespread and widely known. The mere fact that a police vehicle is equipped with such a device could hardly be described an “illustration” of a “confidential technique” or an indication of a procedure that is or may be followed.
In short, assuming that records exist that include the identification of police vehicle equipped with dashboard video cameras, those portions of the records must, in my view, be disclosed, for I do not believe that the Town can justify a denial of access based on either §87(2(e)(i) or (iv).
In an effort to resolve the matter and avoid the initiation of litigation, copies of this opinion will be sent to Town officials.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Christopher P. St. Lawrence
Hon. Christian Sampson