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March 10, 1993

 

 

Mr. John J. Sheehan
P.O. Box 604
Binghamton, NY 13902

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.

Dear Mr. Sheehan:

I have received your letter of February 23, as well as a copy
of a request for records of the City of Binghamton Police
Department.

According to your letter, the matter pertains to a fire claim
that your company is handling for the insurance carrier of the
owner of the property, and you requested "copies of all info
related to fire & subsequent arrest etc for fire at 15 Pine st
Bing, N.Y. 1-12-93." The request was denied on the ground that the
records sought were compiled for law enforcement purposes and would
if disclosed interfere with law enforcement investigations or
judicial proceedings.

You have asked that I clarify "just what a police department
has to give out on each request."

In this regard, I am unfamiliar with the contents of the
records in which you are specifically interested or the effects of
their disclosure. Those elements, the contents of records and the
effects of disclosure, in my view are the factors that would
determine the extent to which a police department may be required
to disclose records.

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 (i) of the Law. I point out, too,
that the introductory language of §87(2) refers to the authority to
withhold "records or portions thereof" that fall within the scope
of one or more of the grounds for denial that follow. Based on the
quoted language, I believe that there may be situations in which a
single record might be both available or deniable in part.
Further, the same language, in my opinion, imposes an obligation on
an agency to review records sought in their entirety to determine
which portions, if any, may justifiably be withheld. As such, even
though some aspects of a police blotter, for example, or other
record might properly be denied, the remainder might nonetheless be
available and would have to be disclosed.

As you are likely aware, the phrase "police blotter" is not
specifically defined in any statute. It is my understanding that
it is a term that has been used, more than anything else, based
upon custom and usage. Further, the contents of what might be
characterized as a police blotter may vary from one police
department to another. As you know, it has been held that police
blotters are available under the Freedom of Information Law
[Sheehan v. City of Binghamton, 59 AD 2d 808 (1977)]. The court in
Sheehan determined that, based on custom and usage, a police
blotter is a log or diary in which any event reported by or to a
police department is recorded. The decision specified that a
traditional police blotter contains no investigative information,
but rather merely a summary of events or occurrences and that,
therefore, it is accessible under the Freedom of Information Law.
When a police blotter is analogous to that described in Sheehan in
terms of its contents, I believe that the public would have the
right to review or "browse through" it.

Several grounds for denial may be relevant with respect to
access to police records, and it is emphasized that many of them
are based upon potentially harmful effects of disclosure. The
following paragraphs will review the grounds for denial that may be
significant.

The initial ground for withholding, §87(2)(a), pertains to
records that are "specifically exempted from disclosure by state or
federal statute". In brief, when a statute exempts particular
records from disclosure, those records may, in my view, be
considered "confidential". For instance, a blotter or other record
might refer to the arrest of a juvenile. In that circumstance, a
record or portion thereof might be withheld due to the
confidentiality requirements imposed by the Family Court Act (see
§784). Further, when charges are dismissed in favor of an accused,
the charges and related records are often sealed pursuant to
§160.50 of the Criminal Procedure Law.

Also 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". It might be applicable relative to
the deletion of identifying details in a variety of situations,
such as domestic disputes, complaints that neighbors' dogs are
barking, or where a record identifies a confidential source or a
witness, for example.

The next ground for denial of relevance 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 opinion, a police blotter containing the kind of information
described in Sheehan could likely be characterized as a record
compiled in the ordinary course of business, rather than a record
"compiled for law enforcement purposes". When that it so,
§87(2)(e) would not be applicable. More detailed blotters or
records relating to a blotter entry such as investigative reports
would likely fall within the scope of §87(2)(e). Those records
would be accessible or deniable, depending upon their contents and
the effects of disclosure.

Another ground for denial of possible relevance is §87(2)(f),
which permits withholding to the extent that disclosure "would
endanger the life or safety of any person." The capacity to
withhold on that basis is dependent upon the facts and
circumstances concerning an event.

The last relevant ground for denial is §87(2)(g). The cited
provision 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 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.

When police blotters or other records are prepared by
employees of a police department, I believe that they could be
characterized as "intra-agency materials". However, insofar as
they consist of factual information, for example, they would be
available, unless a different ground for denial applies.

In sum, as indicated at the outset, police records may be
accessible or deniable, defending upon their specific contents and
the effects of disclosure.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Captain John Butler
Hon. Juanita Crabb, Mayor