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November 17, 1993

 

 

Mr. Harry Wenzel
83-A_4882
Tappan Correctional Facility
354 Hunter Street
Ossining, NY 10562

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. Wenzel:

I have received your letter of October 25. You wrote that
your son "has received a few traffic summonses", but refuses to
show them to you. You have asked whether you can obtain those
records under the Freedom of Information Law.

In this regard, as you may be 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.
While three of the grounds for denial are in my opinion relevant,
I do not believe that any could justifiably be asserted.

One of the grounds for denial, §87(2)(b), permits an agency to
withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy." While an allegation
concerning an individual's conduct could in my view and under
appropriate circumstances be withheld as an unwarranted invasion of
personal privacy, a finding of a violation which indicates that an
individual has failed to comply with law would in my opinion result
in a permissible invasion of one's privacy.

Also of significance is §87(2)(g), which 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.

In my view, the issuance of citations or summonses indicates
that a violation has been found. I believe that such a finding
would consist of "factual" information accessible under
§87(2)(g)(i), as well as a final agency determination accessible
under §87(2)(g)(iii).

The remaining ground for denial of potential relevance is
§87(2)(e), which states that an agency may 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 language quoted above is based upon potentially harmful effects
of disclosure and is generally cited in the context of criminal law
enforcement. From my perspective, the effects of disclosure
described in §87(2)(e) would rarely, if ever, arise in relation to
traffic summonses. Further, it is questionable, in my view,
whether the records in question could be characterized as having
been "compiled for law enforcement purposes." Even if they could
be so characterized, it does not appear that any of the harmful
effects described in subparagraphs (i) through (iv) of §87(2)(e)
would arise by means of disclosure.

Based upon the foregoing, the records in question are in my
view available under the Freedom of Information Law, for I do not
believe that any of the grounds for denial could appropriately be
asserted to withhold those records.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm
MR HARRY WENZEL
83-A_4882
TAPPAN CORRECTIONAL FACILITY
354 HUNTER STREET
OSSINING NY 10562