October 11, 2017

FOIL-AO-19631

SENT VIA EMAIL

TO:                 

FROM:            Robert Freeman, Executive Director

CC:                  Jason Kovacs, Town Attorney (jkovacs@rwhm.com)
Suzanne Reavy, Records Access Appeals Officer (sreavey@townofulster.org)
Jesse Smith, Kingston Times (jjsmith1972@icloud.com)

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, except as otherwise indicated.

            I have received your correspondence concerning your request made pursuant to the Freedom of Information Law (FOIL) for records maintained by the Town of Ulster. 

In a request dated July 14, you sought the following: “All dashboard camera, body camera or other audio/video recordings of a traffic stop initiated by the Town of Ulster Police Officer Gary R. Short of Jennifer V. Berky on May 24, 2017 at 4:57 p.m. The stop is entered in in police records as UL-008085-17.”  The materials that you forwarded indicate that Ms. Berky is an Ulster County legislator, and that she was ticketed for speeding, driving at a speed of 43 miles per hour in a 35 miles per hour zone. I note that the Town Attorney contacted this office, and in discussion of the matter, he informed me that the ticket was issued in a 30 mile per hour zone.   The Town denied the request based on §50-a of the Civil Rights Law, which exempts from disclosure “personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department….”

In this regard, I offer the following comments.

First, as a general matter, FOIL is based on a presumption of access.  Stated differently, all government agency records are accessible to the public, except those records or portions of records that fall within grounds for denial of access appearing in §87(2).
The most frequently cited exceptions relating to “dashcam” video are §87(2)(e)(i) and (ii), which permit an agency to withhold records when disclosure would interfere with a law enforcement investigation or judicial proceeding or deprive a person of a right to a fair trial.  If, for example, a video or other record pertains to an ongoing investigation, it is possible the disclosure would indeed interfere with the investigation and that the video, therefore, may be withheld.  If a video shows a person who has been stopped for driving while intoxicated and that person is weaving from side to side while attempting to walk in a straight line, it is possible that premature disclosure would deprive that person of the right to a fair trial.

In this instance, however, those potentially harmful effects of disclosure would not arise.  Ms. Berky was charged with speeding.  The incident, as I understand it, would not involve an investigation, for it involved a single, brief, routine event.  It seems unlikely that there may be a trial, but even if there will be a trial, in consideration of the nature of the charge, speeding at a rate of 43 miles per hour in a 30 or 35 miles per hour zone, disclosure would have no effect on her right to have a fair adjudication.

There is only one decision of which I am aware that has dealt with access to a dashcam video. In Fusco v. Putnam County Sheriff’s Department, Supreme Court, Putnam County, September 2, 2008, the request was made by the person who was arrested.  The decision was not expansive, and it was held that “Respondent[‘]s claim that the release of the information would interfere with a judicial proceeding  and be an invasion of privacy is unsubstantiated.”  There was no claim that access to the video was governed by §50-a of the Civil Rights Law.  In a more recent decision, Time Warner Cable News NY1 v. New York City Police Dept. 36 NYS3d 579 (2016) concerning access to bodycam footage, the court referred to various possible grounds for denial:  Where the footage “depicts domestic violence, individuals involved in Family Court proceedings or would otherwise constitute an unwarranted invasion of personal privacy,” when footage would “identify the victim of a sex offense,” “Where disclosure of the footage could endanger the life or safety of any person,” or where the footage “relates to a criminal proceeding or traffic infraction.”  The court also referred to footage that “pertains to an incident that subjects a police officer, fire fighter or corrections officer to discipline.”  There appears to be no issue or suggestion to the effect that the arresting officer may be disciplined. 

With respect to both the exception involving unwarranted invasions of personal privacy and §50-a of the Civil Rights Law, there is no unequivocal guidance that can be offered.   In construing the privacy exception, the Court of Appeals, the state’s highest court, has suggested the standard of the “reasonable person of ordinary sensibilities” [Hanig v. State Department of Motor Vehicles, 79 NY2d 106 (1992)].  With no knowledge of the details of the video, it is impossible to offer specific guidance.  If there is nothing intimate or highly personal, it may be that the privacy exception might not apply.  Section 50-a has been construed both narrowly and expansively, and in my view, the question is whether dashcam footage can be characterized as a “personnel record.”  If it cannot, §50-a would not serve as a basis for a denial of access.  If, on the other hand, there is a Town policy or guideline indicating that dashcam video is used to evaluate performance, the response would be different.

Lastly, to reiterate, FOIL requires that all records be disclosed, except those records or portions thereof that fall within the grounds for denial appearing in §87(2).  Further, when a denial of access is challenged in a judicial proceeding, §89(4)(b) of FOIL specifies that the agency has the burden of defending secrecy.  That being so, when responding to a request, FOIL 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 confirmed its general view of the intent of FOIL in Gould v. New York City Police Department, 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)" [89 NY2d 267, 275 (1996)].

            Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of FOIL. In that case, the Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception different from that cited in response to your request. 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.).

            I hope that I have been of assistance.