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July 28, 1993

 

 

Ms. Susan R. Rosenberg
Assistant Commissioner
Civil Matter
The City of New York Police Dept.
New York, N.Y. 10038

Dear Ms. Rosenberg:

Thank you for forwarding your determination of an appeal
rendered under the Freedom of Information Law concerning a request
for records by Karen A. Herrling, Esq.

In brief, you sustained a denial of a request for complaint
follow up reports (DD5's) based upon a decision attached to the
determination. Additionally, you affirmed a denial of access to
police officers' memo books "since these records are the personal
property of the individual officers and are not in the custody of
the Police Department."

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

The case that upon which you relied, 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, of potential significance,
§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.

Further, it has also been held that police officers' memo
books are agency records subject to rights conferred by the Freedom
of Information Law [see Laureano v. Grimes, 579 NYS 2d 357,
__AD__(1992)]. While I am not suggesting that police officers'
memo books must be disclosed in their entirety, based upon
Laureano, I believe that those records fall within the scope of the
Freedom of Information Law and are accessible or deniable, in whole
or in part, depending upon their contents and based upon an
analysis similar to that described by the court in Laureano.

I hope that I have been of some assistance. If you would like
to discuss the matter, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Karen A. Herrling, Esq.