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FOIL-AO-18144

                                                                                                June 10, 2010

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

            I have received your letter in which you sought an advisory opinion pertaining to a request for records made to the Division of State Police.

            According to your letter, the State Police are investigating a former officer of the City of Auburn Police who has been charged with the theft of money from the local police benevolent association.  Your request, which was made on March 4, deals with records pertaining to the matter, and in a response made on April 22, the request was denied on the ground that the records sought relate to an ongoing investigation.  You appealed the denial on April 27, but as of the date of your letter to this office, there was no response to the appeal.

            In this regard, I offer the following comments.

            First, §89(4)(a) of the Freedom of Information Law requires that an agency determine an appeal within ten business days of its receipt by either granting access to the records or “fully explaining in writing” the reasons for further denial.  That statute also provides that a failure to determine appeal within that time may be deemed a denial of the appeal and, although I am not suggesting that you do so, that you make seek judicial review of the denial by initiating a proceeding under Article 78 of the Civil Practice Law and Rules.

            Second and perhaps most importantly, 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 (k) 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 state’s highest court, the Court of Appeals, expressed its general view of the intent of the Freedom of Information Law and the obligations imposed upon agencies 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).

            Second, from my perspective, unless an arrest or booking record has been sealed pursuant to §160.50 of the Criminal Procedure Law, it must be disclosed.  Under that statute, when criminal charges have been dismissed in favor of an accused, the records relating to the arrest ordinarily are sealed.  In those instances, the records would be exempted from disclosure by statute [see Freedom of Information Law, §87(2)(a)].

            Although arrest records are not specifically mentioned in the current Freedom of Information Law, I note that the original version of the law granted access to "police blotters and booking records" [see original Law, §88(1)(f)].  Even though reference to those records is not made in the current statute, I believe that such records continue to be available, for the present law was clearly intended to broaden rather than restrict rights of access.  Moreover, it was held by the Court of Appeals, years ago that, unless sealed under §160.50 of the Criminal Procedure Law, records of the arresting agency identifying those arrested must be disclosed [see Johnson Newspapers v. Stainkamp, 61 NY 2d 958 (1984)].

            Third, often most relevant in the context of your inquiry is §87(2)(e), which permits an agency to withhold records that are:

"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."

The ability to deny access to records is dependent on the effects of disclosure.  Only to the extent that the harmful effects described in subparagraphs (I) through (iv) would arise may §87(2)(e) be asserted.

            In the context of criminal proceedings, a variety of information is routinely disclosed.  An arraignment, for example, occurs during a public judicial proceeding, and information equivalent to that disclosed during an arraignment must, in my view, be disclosed by a police department or prosecutor.  It has been held that once information has been disclosed during a public judicial proceeding, the grounds for denying access under the Freedom of Information Law no longer apply [see Moore v. Santucci, 151 AD2d 677 (1989)].  Further, when a person is arrested, taken into custody and is committed to a county jail, a record must be maintained at the jail that includes numerous details, all of which must be disclosed.  Specifically, §500-f of the Correction Law, which pertains to county jails, states that:

"Each keeper shall keep a daily record, to be provided at the expense of the county, of the commitments and discharges of all prisoners delivered to his charge, which shall contain the date of entrance, name, offense, term of sentence, fine, age, sex, place of birth, color, social relations, education, secular and religious, for what any by whom committed, how and when discharged, trade or occupation, whether so employed when arrested, number of previous convictions.  The daily record shall be a public record, and shall be kept permanently in the office of the keeper."

            Similarly, it has been held that mugshots of defendants are accessible, unless they have been sealed by statute due to the dismissal of charges.  It is assumed that individuals arrested could have been seen during judicial or other proceedings (i.e., arraignments) that were open to the public.  If the public can be present at or view a proceeding during which an arrestee can be identified, it is difficult to envision how a photograph of that individual could properly be withheld, notwithstanding the provisions of §87(2)(e) or §87(2)(b), which authorizes an agency to deny access when disclosure would  constitute an unwarranted invasion of personal privacy.

            Although they do not constitute law, pertinent are the “principles and guidelines” adopted by the New York Fair Trial Free Press Conference.  That entity, which is chaired by the Chief Judge of the Court of Appeals, consists of members of news organizations, as well as associations of judges, chiefs of police, sheriffs and district attorneys.  The principles and guidelines reflect a general agreement among its members and includes “Guidelines in Criminal Cases.”  Guideline 1(a) states that “When and after an arrest is made”, the following information should be made available for publication: “The accused’s name, age, residence, employment, marital status and similar background information.”

            In short, a variety of details concerning defendants are often required to be disclosed or disclosed pursuant to widely accepted guidelines.  Nevertheless, there may be instances in which there is a basis in the Freedom of Information Law for withholding some aspects of the kinds of records to which you referred.  As indicated previously, §87(2)(e) pertains to records compiled for law enforcement purposes and authorizes a denial of access in certain circumstances.  If, for example, disclosure would deprive a person charged with a fair trial, I believe that a denial of access would be appropriate.  However, the ability to assert that or other exceptions would be dependent on the attendant facts.  As more information becomes available through judicial proceedings or the filing of records with the courts, which are generally public, the authority of a law enforcement agency to deny access often will diminish. 

            Other instances in which denials of access would be proper would involve the ability to withhold portions of records that may identify informants or witnesses, for example, or which if disclosed would interfere with an ongoing investigation.  Again, the authority to withhold portions of records would not necessarily permit an agency to withhold the records in their entirety.  Rather, to comply with law, the records must be reviewed to determine which portions, if any, may justifiably be withheld.

            In an effort to enhance compliance with law and obviate any need to engage in litigation, a copy of this opinion will be forwarded to the State Police.

            I hope that I have been of assistance.

RJF:jm

cc: William Callahan, FOIL Appeals Officer