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FOIL-17882

                                                                                                November 5, 2009

 

E-Mail

TO:               

FROM:            Robert J. Freeman, Executive Director

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

            As you are aware, I have received your letter in which you wrote that the Middletown Police Department has “refused to provide even a redacted incident report citing ‘on going investigation’ ([your] client has already ben indicted and ‘pending judicial proceeding.’” You added that the District Attorney has “also refused to provide the initial police report which would either confirm or refute [your] client’s claim that he called 911 and helped the police with a victim of an alleged robbery who subsequently claimed that [your] client robbed him.”

            In this regard, I offer the following comments.

            First, 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.

            Second, with respect to the possibility that a 911 call was made, relevant is the first ground for denial, §87(2)(a), which pertains to records that “are specifically exempted from disclosure by state or federal statute.”  One such statute is §308(4) of the County Law, which states that:

"Records, in whatever form they may be kept, of calls made to a municipality's E911 system shall not be made available to or obtained by any entity or person, other than that municipality's public safety agency, another government agency or body, or a private entity or a person providing medical, ambulance or other emergency services, and shall not be utilized for any commercial purpose other than the provision of emergency services."

            Based on the foregoing, "records...of calls" means either a recording or a transcript of the communication between a person making a 911 emergency call, and the employee of the municipality who receives the call. Records of that nature are, in my view, exempted from disclosure by statute.  Other records, such as those prepared following a 911 call are not, in my view, subject to §308 of the County Law; rather, I believe that rights of access to those other records would be governed by the Freedom of Information Law.

            I note although the term “municipality” most often would include a town, city or village, that is not so in this context.  Section 301 of the County Law contains a series of definitions for application in Article 6, and subdivision (1) defines “municipality” to mean “any county except a county wholly contained within a city and any city having a population of one million or more persons.”  That being so, §308(4) applies only to counties outside of New York City and does not apply to a city, town or village police department.

            If §308 does not apply because the 911 call was made to a police department other than a county agency, the Freedom of Information Law governs rights of access.

            Notwithstanding the foregoing, if your interest involves learning whether a 911 call was made by your client, I point out that, from my perspective, a response to a request made pursuant to the Freedom of Information Law may generally take  one of three forms: first, that an agency possesses a record and grants access; second, that an agency possesses a record and denies access in accordance with an exception to rights of access appearing in §87(2) of that statute; or third, that the agency does not maintain the record.  Any of those responses would indicate the existence or absence of the existence of record pertaining to a 911 call.

            Next, there is no provision in the Freedom of Information Law or any other statute of which we are aware that directly refers to or mentions“incident reports”, or police blotters, for example.  I note, however, that the Freedom of Information Law as originally enacted listed categories of records that were accessible, and that one of those categories involved “police blotters and booking records.” Issues arose relative to those records because they are not legally defined.  While many are familiar with the phrases “police blotter” and “booking record”, the contents of those records differ from one police agency to the next.  Similarly, the contents of incident reports differ from one department to the next, and from one event to another.

            As indicated earlier, 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 reiterated 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, a police department contended that certain reports, so-called “complaint follow up reports” that are similar in nature to incident reports, could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g).  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.).

            Considering the matter in relation to issues that arose concerning the traditional police blotter or equivalent records, I believe that such records would, based on case law, be accessible.  In Sheehan v. City of Binghamton [59 AD2d 808 (1977)], it was determined, based on custom and usage, that a police blotter is a log or diary in which events reported by or to a police department are recorded.  That kind of record would consist of a summary of events or occurrences, it would not include investigative information, and would be available under the law.

            If a police blotter, incident reports or other records, regardless of their characterization, include more information than the traditional police blotter, it is possible that portions of those records, depending on their contents and the effects of disclosure, may properly be withheld.  The remainder, however, would be available.  For instance, the fact that a robbery of a convenience store occurred and is recorded in a paper or electronic document would clearly be available, even if no one has been arrested or arraigned; the names of witnesses or suspects, however, might properly be withheld for a time or perhaps permanently, depending on the facts.  The fact that a fire occurred and is recorded would represent information accessible under the law; records indicating the course of  an arson investigation might, perhaps for a time, justifiably be withheld.

            In considering the nature of an incident report, several of the grounds for denial might be pertinent and serve to enable a law enforcement agency to withhold portions, but not the entire contents of records.

            For example, the provision at issue in a decision cited earlier, Gould, §87(2)(g), enables an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i.  statistical or factual tabulations or data;

ii.  instructions to staff that affect the public;

iii.  final agency policy or determinations; or

iv.  external audits, including but not limited to audits performed by the comptroller and the federal government..."

            It is noted that the language quoted above contains what in effect is a double negative.  While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted.  Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

            In its analysis of the matter, the decision states that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][111]).  However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions.  Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)...

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]).  Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][I].  Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182).

"Against this backdrop, we conclude that the complaint follow-up reports contain substantial factual information available pursuant to the provisions of FOIL.  Sections of the report are devoted to such purely factual data as: the names, addresses, and physical descriptions of crime victims, witnesses, and perpetrators; a checklist that indicates whether the victims and witnesses have been interviewed and shown photos, whether crime scenes have been photographed and dusted for fingerprints, and whether neighborhood residents have been canvassed for information; and a blank space denominated 'details' in which the officer records the particulars of any action taken in connection with the investigation. 

"However, the Police Department argues that any witness statements contained in the reports, in particular, are not 'factual' because there is no assurance of the statements' accuracy and reliability.  We decline to read such a reliability requirement into the phrase 'factual data', as the dissent would have us do, and conclude that a witness statement constitutes factual data insofar as it embodies a factual account of the witness's observations.  Such a statement, moreover, is far removed from the type of internal government exchange sought to be protected by the intra-agency exemption (see, Matter of Ingram v. Axelrod, 90 AD2d 568, 569 [ambulance records, list of interviews, and reports of interviews available under FOIL as 'factual data']).  By contrast, any impressions, recommendations, or opinions recorded in the complaint follow-up report would not constitute factual data and would be exempt from disclosure.  The holding herein is only that these reports are not categorically exempt as intra-agency material.  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., 276-277 (1996); emphasis added by the Court].

            Based on the foregoing, the agency could not claim that the requested reports may be withheld in their entirety on the ground that they constitute intra-agency materials.  The Court also found that portions of reports reflective of information supplied by members of the public are not inter-agency or intra-agency communications, for those persons are not officers or employees of a government agency (id., 277).  However, the Court was careful to point out that other grounds for denial might apply in consideration of the contents of the records and the effects of disclosure.

            Of potential significance is §87(2)(b) of the Freedom of Information Law, which permits an agency to withhold records or portions thereof when disclosure would constitute "an unwarranted invasion of personal privacy". That provision might be applicable relative to the deletion of identifying details in a variety of situations, i.e., where a record identifies a confidential source, a witness, or perhaps a victim. 

            Often the most relevant provision concerning access to records maintained by law enforcement agencies is §87(2)(e), which permits an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv.  reveal criminal investigative techniques or procedures, except routine techniques and procedures."

            In my view, the foregoing indicates that records compiled for law enforcement purposes can only be withheld to the extent that disclosure would result in the harmful effects described in sub- paragraphs (i) through (iv) of §87(2)(e).

            In sum, incident reports and similar records, by their nature, differ in content from one situation or incident to another.  To suggest that they may be withheld in their entirety, categorically, in every instance, is in our opinion contrary to both the language of the Freedom of Information Law and its judicial construction by the state’s highest court.

            I hope that I have been of assistance.

RJF:jm

cc: Records Access Officer, City of Middletown Police Department
Records Access Officer, Office of the Orange County District Attorney