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February 5, 1993

 

 

Mr. Ronald Goldstock
Deputy Attorney General
Statewide Organized Crime Task Force
143 Grand Street
White Plains, NY 10601

Dear Mr. Goldstock:

I have received a copy of a letter of January 22 addressed to
you by Jeremy Travis, Deputy Commissioner of the New York City
Police Department, regarding your disclosure of a so-called "DD-5"
prepared by the Department to the New York Times.

In brief, Mr. Travis wrote that the Police Department has
taken the position, based upon a judicial decision, that DD-5's
"are not disclosable" under the Freedom of Information Law, for
they consist of "intra-agency materials which do not contain final
agency policy or determinations, and therefore are exempt from
disclosure." Further, he asked that your office "adopt the same
legal position."

From my perspective, the position taken by the Department, to
engage in blanket denials of DD-5's generally, is overly simplistic
and is inappropriate as a matter of law.

The case that Mr. Travis cited, Scott v. Slade [577 NYS 2d
861,___Ad 2d___(1992)], affirmed a decision upholding a denial of
a request for a DD-5. While that decision might have been correct
in that instance, another decision rendered by the same court, the
Appellate Division, First Department, reached a different
conclusion following an in camera inspection. In Mitchell v.
Slade, it was found that:

"[t]he Motion Court, after reviewing the
documents in camera, declined to dismiss the
petition and held that respondent had failed
to meet its burden of proving exemption for
the redacted DD-5 follow up report. The
Motion Court held that the exceptions
contained in Public Officers Law §87(2) did
not apply in this factual context, citing
Cornell Univ. v. City of N.Y. Police Dept.
(153 Ad 2d 515), and ordered production of the
DD-5 with appropriate redaction. On this
record, after a careful review of the
documents produced to the Motion Court, we are
satisfied that the materials are not exempt
under the law enforcement exemption (Public
Officers Law §87[2][e] or the intra-agency
(Public Officers Law §87[2][g])" [173 Ad 2d
226, 227 (1991)].

In my opinion, based upon Mitchell, it would be inappropriate to
engage in denials of access to DD-5's in every instance in which
they are requested. Rather, as suggested in that decision, the
"factual context", the specific contents of the records, and the
effects of their disclosure are the factors that must be considered
in determining the extent to which those records may be withheld
or, conversely, must be disclosed.

As you are aware, §87(2)(e) enables 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."

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).

The other basis for denial, which was cited by Mr. Travis,
§87(2)(g), permits 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 applies. 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.

Again, I believe that the contents of the records and the
effects of disclosure determine rights of access, and that a policy
of denying requests for DD-5's in every instance is inconsistent
with the requirements of the Freedom of Information Law.

Moreover, even when an agency has the authority to withhold
records in accordance with the grounds for denial, it is not
required to do so. The introductory language of §87(2) of the
Freedom of Information Law indicates that an agency "may" withhold
records falling within the scope of the exemptions that follow and,
as stated by the Court of Appeals, "...while an agency is permitted
to restrict access to those records falling within the statutory
exemptions, the language of the exemption provision contains
permissive rather than mandatory language, and it is within the
agency's discretion to disclose such records...if it so chooses"
[Capital Newspapers v. Burns, 67 NY 2d 562, 567 (1986)].

If you would like to discuss the matter, please feel free to
contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Jeremy Travis, Deputy Commissioner