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April 19, 1993

 

Ms. Mary Thill
Press-Republican
P.O. Box 893
Lake Placid, NY 12946

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 Ms. Thill:

I have received your letter of March 31 in which you indicated
that you and other members of the news media met with Michael
Saulpaugh, Lake Placid's Chief of Police, to discuss issues
relating to access to the police blotter. In view of Chief
Saulpaugh's concerns, particularly with respect to the issue of
"unwarranted invasion of personal privacy", you wrote that it was
agreed that my opinion would be sought.

For purposes of seeking guidance, you have requested my views
concerning the following four examples:

"1. A woman who is identified calls to report
a neighbor looking into her bedroom window
with a telescope. The neighboring residence
was empty upon patrol arrival; end of entry.
Can police show her name to reporters?

2. If a file is sealed by the court after it
has been shown to reporters, do police bear
any liability for prior release of this
information?

3. An individual, identified, is reported as
a possible shoplifter. He is located by
police, who find complaint unfounded. The
individual is never charged, but his name is
in the blotter as a shoplifting suspect. Do
police risk any liability for showing that
information to public eyes?

4. Police are 'called to address domestic
dispute. Found Mr. Smith and Mrs. Smith. She
came home intoxicated. After a lengthy
discussion, things were quieted down.' Can
reporters view this entry, or would it amount
to invasion of privacy?"

Before addressing the specific examples that you provided, I
would like to offer initial and general commentary.

First, as you are likely aware, 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
or other record might properly be denied, the remainder might
nonetheless be available and would have to be disclosed.

Second, 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. In
a decision on the subject [Sheehan v. City of Binghamton, 59 AD 2d
808 (1977)], it was 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 it in its entirety.

It appears that the blotter maintained by the Lake Placid
Police Department may be more expansive than the traditional police
blotter described in Sheehan. If that is so, although it is
subject to rights of access, portions of the blotter might be
withheld, depending upon its contents and the effects of
disclosure.

Since several of the examples pertain in part to the
Department's ability to disclose or the liability that might arise
due to disclosure, I point out that the Freedom of Information Law
is permissive; while an agency in appropriate circumstances may
withhold records or portions of records, ordinarily there is no
obligation to do so. The introductory language of §87(2) states in
relevant part that: "Each agency shall...make available for public
inspection and copying all records, except that such agency may
deny access to records or portions thereof" that fall within the
grounds for denial that follow (emphasis added).

Moreover, the Court of Appeals, the state's highest court, has
confirmed that the exceptions to rights of access are permissive,
rather than mandatory, stating that:

"while an agency is permitted to restrict
access to those records falling within the
statutory exemptions, the language of the
exemption provision contains permissible
rather than mandatory language, and it is
within the agency's discretion to disclose
such records, with or without identifying
details, if it so chooses" [Capital Newspapers
v. Burns, 67 NY 2d 562, 567 (1986)].

Therefore, even if it is determined that disclosure would
constitute an unwarranted invasion of personal privacy, for
example, an agency would have the authority to disclose.

The only situations in which an agency cannot disclose records
would involve the proper assertion of §87(2)(a). That provision
pertains to records that "are specifically exempted from disclosure
by state or federal statute." Two examples of statutes that
prohibit disclosure involve records regarding arrests of juveniles
and records that are sealed when charges are dismissed in favor of
an accused. In the case of records pertaining to juveniles, §784
of the Family Court Act prohibits disclosure. When charges are
dismissed in favor of an accused, the charges and records relating
to them are generally ordered sealed pursuant to §160.50 of the
Criminal Procedure Law. Prior to sealing, however, i.e., when
charges are pending, a booking record would in my opinion be
clearly available.

With respect to the provision upon which you focused dealing
with unwarranted invasions of personal privacy, I believe that the
standard is flexible and that subjective judgments must often be
made. On the subject of privacy generally, individuals may differ
as to what privacy is and when disclosure would be "unwarranted" as
opposed to permissible.

In the case of the first example, although the Police
Department could in my opinion disclose the identity of the woman
who contacted the Department, it is likely in my view that her name
could be withheld on the ground that disclosure would constitute an
unwarranted invasion of personal privacy. Similarly, since her
complaint was unsubstantiated, disclosure of the identity of the
neighbor might also result in an unwarranted invasion of that
person's privacy.

With regard to the second example, I believe that records are
subject to disclosure under the Freedom of Information Law, unless
there is a basis for denial or until the record is sealed. As
suggested earlier, a booking record, the record of an arrest made
by the arresting agency, must in my opinion be disclosed. If the
record is later sealed, I do not believe the prior disclosure would
in any way be inappropriate.

The third example is similar in some respects to the first.
While I believe that the name could be disclosed, since the
complaint was unfounded, the Department in my opinion could
withhold the name based on considerations of privacy. The same
would be so on the case of the fourth example. While I do not
believe that the Police Department would be required to disclose
the names of those involved in a domestic dispute that did not
result in any charge, it is likely that the names could be withheld
as an unwarranted invasion of personal privacy.

It is emphasized that there are no concrete rules or decisions
that deal specifically with the kinds of issues that are the
subject of your inquiry. From my perspective, often determinations
concerning privacy must be made on a case by case basis in view of
the facts, and that those determinations should be based on
reasonableness in conjunction with the facts and circumstances.

Enclosed is a copy of an article pertaining to police records
that may be useful and which can be shared if you see fit to do so.

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: Michael Saulpaugh, Chief of Police