NY.gov Portal State Agency Listing

 

October 26, 1993

 

 

Ms. Helen S. Rattray
The East Hampton Star
153 Main Street
PO Box E
East Hampton, NY 11937

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. Rattray:

I have received your communication of September 20.

You have requested an advisory opinion concerning what appears
to be a memorandum reflective of guidelines "laid out for the
press" by a municipal police department. The guidelines provide as
follows:

"1 - All items that are blacked out cannot be
copied (even if you can see).

2 - Reports are not allowed to leave HQ, for
any reason.

3 - Exact addresses, names of victim's
telephone numbers of victims are not to be
reported.

4 - Victims are not to be contacted or
badgered.

5 - Do not report the race of any defendant.
Do not want to stereotype a particular race or
culture.

6 - All given a copy of the civil rights law
prohibiting the disclosure of the identity of
a sexual assault victim (in certain cases)."

In this regard, I offer the following comments.

First, I do not believe that the "guidelines" can be equated
with law or be considered binding upon members of the news media.
While it can be suggested that victims are not to be contacted, or
that the race of a defendant should not be reported, certainly
members of the news media may use discretion in reporting and may
contact victims or report the race of a defendant if they so
choose. In short, what is newsworthy, in my opinion, involves a
judgment made by members of the news media, not by government
officials.

Second, some aspects of the guidelines appear to conflict with
law.

By way of background, the general statute involving access to
government records, the Freedom of Information Law, pertains to all
agency records, irrespective of their origin, use, or physical
form. Further, that statute 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. It is also emphasized that the introductory language of
§87(2) refers to an agency's ability to withhold "records or
portions thereof" in accordance with the grounds for denial that
follow. The phrase quoted in the preceding sentence indicates that
single record may include portions that are available, as well as
portions that may justifiably be withheld. That phrase also
imposes an obligation upon agencies to review requested records in
their entirety to determine which portions, if any, may properly be
withheld prior to disclosure of the remainder. Those records or
portions of records that are accessible under the Freedom of
Information Law must be available for inspection and copying, and
§89(3) of the Law requires that agencies prepare copies of
accessible records, in which case a fee may be charged.

It appears that several aspects of the guidelines are designed
to protect the privacy of victims of crimes. In the case of
victims of sex offenses, §50-b of the Civil Rights Law prohibits a
police agency from disclosing records identifying the victims of
those offenses. In those instances, the records are "specifically
exempted from disclosure by...statute" in accordance with §87(2)(a)
of the Freedom of Information Law.

Only when a statute specifically requires confidentiality is
an agency precluded from disclosing records or portions of records.
When no statute specifically requires confidentiality, of potential
relevance is §87(2)(b) of the Freedom of Information Law. That
provision enables an agency to withhold records insofar as
disclosure would constitute "an unwarranted invasion of personal
privacy". That standard in my view is flexible and often requires
the making of subjective judgements. While the name of a victim of
a burglary who is an 82 year old female living alone might properly
be withheld as an unwarranted invasion of personal privacy,
certainly the name of the proprietor of liquor store that was
robbed would be public. In between those extremes are countless
situations in which there may be victims, and the attendant facts
in each instance must be considered. In some cases, criminal or
other events are public or involve public responses in which
victims are directly or indirectly identified. In others, where a
record involves intimate personal information, perhaps
considerations of privacy might outweigh the public's interest in
disclosure. From my perspective, those latter situations would be
relatively rare.

Further, a policy or guideline that restricts the disclosure
of victims' names in all cases is, based upon case law,
inconsistent with the Freedom of Information Law. In a case in
which a law enforcement agency permitted persons reporting
incidents to indicate on a form their preference concerning the
agency's disclosure of the incident to the news media, the
Appellate Division found that, as a matter of law, the agency could
not withhold the record based upon the "preference" of the person
who reported the offense. Specifically, in Johnson Newspaper
Corporation v. Call, Genesee County Sheriff, 115 AD 2d 335 (1985),
it was found that:

"There is no question that the 'releasable
copies' of reports of offenses prepared and
maintained by the Genesee County Sheriff's
office on the forms currently in use are
governmental records under the provisions of
the Freedom of Information Law (Public
Officers Law art 6) subject, however, to the
provisions establishing exemptions (see,
Public Officers Law section 87[2]). We reject
the contrary contention of respondents and
declare that disclosure of a 'releasable copy'
of an offense report may not be denied, as a
matter of law, pursuant to Public Officers Law
section 87(2)(b) as constituting an
'unwarranted invasion of personal privacy'
solely because the person reporting the
offense initials a box on the form indicating
his preference that 'the incident not be
released to the media, except for police
investigative purposes or following arrest'."

Similarly, although the issue did not involve law enforcement, the
Court of Appeals has held that a request for or a promise of
confidentiality is all but meaningless; unless one or more of the
grounds for denial appearing in the Freedom of Information Law may
appropriately be asserted, the record sought must be made available
[see Washington Post v. New York State Insurance Department, 61 NY
2d 557, 567 (1984)].

Moreover, the Court of Appeals 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)].

Based on the foregoing, 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. In a
related vein, when in possession of information, the news media is
free to disclose or disseminate it, even if the information could
have been withheld to pursuant law.

Lastly, since the guidelines refer to the race of a defendant,
as you are aware, often the race and other details regarding
suspects and others are disclosed. In addition, §500-f of the
Correction Law, which pertains to records maintained by the
"keepers" of county jails, states that:

"Each keeper shall keep a daily record, to be
provided at the expense of the county, of the
commitments and discharges of all prisoners
delivered to his charge, which shall contain
the date of entrance, name, offense, term of
sentence, fine, age, sex, place of birth,
color, social relations, education, secular
and religious, for what and by whom committed,
how and when discharged, trade or occupation,
whether so employed when arrested, number of
previous convictions. The daily record shall
be a public record and shall be kept
permanently in the office of the keeper."

Based upon the foregoing, often the public record kept at county
jail will contain a variety of information, including race, about
persons who have been arrested and/or convicted. Equivalent
information should in my view be disclosed by other law enforcement
officials. Whether a member of the news media chooses to
disseminate any or all of that information is, in my opinion, a
matter of editorial judgment.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb