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April 16, 1993

 

 

Francis A. DeFrancesco
Chief Inspector
New York State Police
State Office Building Campus
Albany, NY 12226

Dear Chief Inspector DeFrancesco:

Thank you for sending your determination of an appeal made
under the Freedom of Information Law by Mr. Edward L. Fiandach. In
brief, you affirmed a denial of a request for the "New York State
Police Breath Test Operator's Training Manual" pursuant to
§87(2)(e) and (g) of the Freedom of Information Law.

Mr. Fiandach indicated that he had reviewed earlier versions
of the Manual and contended that such manual:

"consists basically of antecdotal information
relating to breath testing and alcohol
consumption. It contains basic information
concerning the effects of alcohol, and the
absorption thereof, all of which is available
at any public library. It contains schematic
drawings and line drawings of the breathalyzer
Model 900A, which likewise may be obtained
through numerous publications such as Erwins
Defense of Drunk Driving, Nichols Drunk
Driving, Litigation Criminal and Civil and
Brent and Stiller Handling Drunk Driving
Cases.

"Additionally, the techniques, forms, and
methods which are contained in the Breath Test
Operators Manual form the basic core of the
People's proof in a prosecution for Driving
While Intoxicated, and in fact, are required
to be presented in a public courtroom as a
matter of law."

I am unfamiliar with the manual that was withheld. However,
if the manual is analogous to that described by Mr. Fiandach, it
would appear that the denial was overbroad. In this regard, I
offer the following comments, some aspects of which may be
repetitive of observations made in previous correspondence.

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 of the grounds for denial
appearing in §87(2)(a) through (i) of the Law. From my
perspective, while both of the grounds for denial to which you
alluded are relevant to an analysis of rights to access, the extent
to which they could properly have been asserted is questionable.

One of the provisions to which you referred, §87(2)(g), states
that an agency may 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..."

Based on the foregoing, the contents of inter-agency or intra-agency materials determine the extent to which those materials may
properly be denied. Further, 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 basis for denial is applicable. 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.

Moreover, the Court of Appeals has specified that the contents
of intra-agency materials determine the extent to which they may
be available or withheld, for it was found that:

"While the reports in principle may be exempt
from disclosure, on this record - which
contains only the barest description of them -
we cannot determine whether the documents in
fact fall wholly within the scope of FOIL's
exemption for 'intra-agency materials,' as
claimed by respondents. To the extent the
reports contain 'statistical or factual
tabulations or data' (Public Officers Law
section 87[2][g][i], or other material subject
to production, they should be redacted and
made available to the appellant" [Xerox Corp.
v. Town of Webster, 65 NY 2d 131, 133 (1985)].

While the manual constitutes intra-agency material, by its
nature, it would appear to consist of instructions to staff that
affect the public available under §87(2)(g)(ii) or "final agency
policy" with regard to the methods by which the Division of State
Police carries out certain procedures that would be available under
§87(2)(g)(iii), unless a different ground for denial applies.

The other provision to which you referred 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 of 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."

Under the circumstances, it appears that most relevant is
§87(2)(e)(iv). The leading decision concerning that provision is
Fink v. Lefkowitz, which 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). It is no secret that numbers on a
balance sheet can be made to do magical things
by scrupulous nursing home operators the path
that an audit is likely to take and alerting
them to items to which investigators are
instructed to pay particular attention, does
not encourage observance of the law. Rather,
release of such information actually
countenances fraud by enabling miscreants to
alter their books and activities to minimize
the possibility or being brought to task for
criminal activities. In such a case, the
procedures contained in an administrative
manual are, in a very real sense, compilations
of investigative techniques exempt from
disclosure. The Freedom of Information Law
was not enacted to furnish the safecracker
with the combination to the safe" (id. at
572-573).

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 [1974]).
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).

While I am unfamiliar with the record in question, it would
appear that those portions which, if disclosed, would enable
potential lawbreakers to evade detection could likely be withheld.
In addition, as you are likely aware, in a decision which dealt
with a request for certain regulations of the State Police, the
Court of Appeals found that some aspects of the regulations were
non-routine, and that disclosure could "allow miscreants to tailor
their activities to evade detection" [De Zimm v. Connelie, 64 NY 2d
860 (1985)]. Nevertheless, other portions of the record might be
"routine" and might not if disclosed preclude the Division from
carrying out its duties effectively.

It is respectfully requested that you reconsider your
determination, and I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: Edward L. Fiandach