NY.gov Portal State Agency Listing

 

December 21. 1993

 

 

Ms. Diana T. Nicols
RR2, Box 601
Cooperstown, NY 13326

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. Nicols:

I have received your letter and the materials attached to it.
You have sought an advisory opinion concerning a denial of access
to records under the Freedom of Information Law.

According to the materials, you requested: "Documentation
showing how often deputies must be certified in firearms training
and documentation showing dates when deputies received training
during the period October, 1991 through October 1993." The request
was denied initially and following your appeal. In the
determination of your appeal, it was stated that: "The records in
question are considered confidential because they reveal criminal
investigative techniques or procedures (Section 87(2)(e)(iv) and
are Personnel Records."

In this regard, 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. Although several of the grounds for denial may be relevant in
determining rights of access, I do not believe any could properly
be asserted.

First, §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.

It would appear that documentation indicating how often
deputies must be certified in firearms training, as well as records
of the dates when training was received, would constitute intra-agency materials. However, a rule, a policy, or a directive
indicating the necessary frequency of training or certification would appear to consist of instructions to staff that affect
the public available under §87(2)(g)(ii) or "final agency policy"
that would be available under §87(2)(g)(iii), unless a different
ground for denial applies.

A second provision of potential significance 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).

In addition, 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)].

In the context of your request, it is my view that a policy or
rule which merely indicates the frequency of required training or
certification is "routine" and must be disclosed. Conversely, if
you had requested specific details regarding the nature of
training, perhaps in that case, the records would have been
reflective of "non-routine" criminal investigative techniques or
procedures. As such, I do not believe that §87(2)(e)(iv) would
serve as a valid basis for a denial.

Records indicating the dates of training would constitute
intra-agency materials. However, that information would consist of
factual data available under §87(2)(g)(i). Moreover, you did not
request the names of deputies who received training. Even if you
did seek the names of those who received training and the dates of
the training, it is questionable whether a denial would have been
proper.

The initial ground for denial in the Freedom of Information
Law, §87(2)(a), pertains to records that "are specifically exempted
from disclosure by state or federal statute." One such statute is
§50-a of the Civil Rights Law. In brief, that statute provides
that personnel records of police and correction officers that are
used to evaluate performance toward continued employment or
promotion are confidential. The Court of Appeals, the state's
highest court, in reviewing the legislative history leading to its
enactment, has held that §50-a is not a statute that exempts
records from disclosure when a request is made under the Freedom of
Information Law in a context unrelated to litigation. More
specifically, in a case brought by a newspaper, it was found that:

"Given this history, the Appellate Division
correctly determined that the legislative
intent underlying the enactment of Civil
Rights Law section 50-a was narrowly specific,
'to prevent time-consuming and perhaps
vexatious investigation into irrelevant
collateral matters in the context of a civil
or criminal action' (Matter of Capital
Newspapers Div. of Hearst Corp. v. Burns, 109
AD 2d 92, 96). In view of the FOIL's
presumption of access, our practice of
construing FOIL exemptions narrowly, and this
legislative history, section 50-a should not
be construed to exempt intervenor's 'Lost Time
Record' from disclosure by the Police
Department in a non-litigation context under
Public Officers section 87(2)(a)" [Capital
Newspapers v. Burns, 67 NY 2d 562, 569
(1986)].

It was also found that the exemption from disclosure conferred by
§50-a of the Civil Rights Law "was designed to limit access to said
personnel records by criminal defense counsel, who used the
contents of the records, including unsubstantiated and irrelevant
complaints against officers, to embarrass officers during cross-examination" (id. at 568).

In another decision, which dealt with unsubstantiated
complaints against correction officers, the Court of Appeals held
that the purpose of §50-a "was to prevent the release of sensitive
personnel records that could be used in litigation for purposes of
harassing or embarrassing correction officers" [Prisoners' Legal
Services v. NYS Department of Correctional Services, 73 NY 2d 26,
538 NYS 2d 190, 191 (1988)].

Based upon the foregoing, it does not appear that §50-a of the
Civil Rights Law would serve as a basis for denial. Further, if
you are only interested in dates of training, names of deputies
could be deleted from records that would otherwise be available.

As you requested, a copy of this opinion will be forwarded to
Carl F. Higgins, Chairman of he Otsego County Board of
Representatives.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Carl F. Higgins