May 3, 2013
FROM: Camille S. Jobin-Davis, Assistant 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 facts presented in your correspondence.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the New York City Police Department. Specifically, you requested information regarding payments made to police informants in cases resulting in convictions for certain crimes over a certain period of time. We note that while initially you made a broad request for payment information, you subsequently narrowed your request, seeking in one instance, only the type of crime, the value of the reward and the date it was paid, and in the second, and only with respect to convicted murderers, the value of the reward, the date it was paid and the perpetrator’s name where the informant testified in open court.
The Department denied access to your initial and more broadly worded request on the grounds that disclosure would endanger the life or safety of those persons who have received payment for providing information about active criminal investigations, identify confidential sources and cause unwarranted invasions of personal privacy. Your later requests were denied only on the ground that disclosure would reveal criminal investigative techniques or procedures.
In this regard, 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 (l) of the Law.
The exception upon which the Department relied to deny access to the records identified in the later requests involves records compiled for law enforcement purposes which, if disclosed, would “reveal non-routine criminal investigative techniques and procedures” pursuant to §87(2)(e)(iv). As we understand the information that you have requested, it seems unlikely that such records, assuming that they are maintained by the Department and can be located with reasonable effort, would involve “non-routine” criminal investigative techniques or procedures.
The leading decision focusing on §87(2)(e)(iv), Fink v. Lefkowitz, 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 (see Frankel v. Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution.
"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).
As the Court of Appeals has suggested, to the extent that the records in question include descriptions of investigative techniques which if disclosed would enable potential lawbreakers to evade detection or endanger the lives or safety of law enforcement personnel or others [see also, Freedom of Information Law, §87(2)(f)], a denial of access would be appropriate. We would conjecture, however, that data regarding payments made, and case information regarding those who received payments and later testified in open court could not be characterized as "non-routine", and that it is unlikely that disclosure of such information would result in the harmful effects of disclosure described in Fink. In short, to the extent that disclosure would enable a potential lawbreaker to tailor his or her activities in a manner that would enable that person or others to evade effective law enforcement or detection, the records could, in our opinion, justifiably be withheld. If that would not be so, however, we do not believe that the provision upon which the Department relied to deny access would apply.
We hope that this is helpful.