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December 27, 1993

 

 

Mr. Anthony Logallo
90-B-1210
3622 Wende Road
Alden, NY 14004

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. Logallo:

I have received your letter of November 16 in which you sought
an advisory opinion concerning the Freedom of Information Law.

By way of background, having requested police reports, witness
statements and similar records from the office of the Suffolk
County District Attorney, you received the records with certain
deletions of names and locations. You contended that the documents
in question "would normally be provided, without deletions during
pre trial discovery in any criminal case." That being so, you
questioned how the Freedom of Information Law could permit
deletions and whether the situation represents a "double standard".
You also questioned the propriety of the deletions under the
Freedom of Information Law.

In this regard, I offer the following comments.

First, while I am unaware of judicial decisions that have
specifically considered the relationship between the Freedom of
Information Law and disclosure devices available in conjunction
with criminal proceedings, the courts have provided direction
concerning the Freedom of Information Law as opposed to the use of
discovery under the Civil Practice Law and Rules (CPLR) in civil
proceedings. In my view, the principle would be the same, that the
Freedom of Information Law is a vehicle that confers rights of
access upon the public generally, while the disclosure provisions
of the CPLR or the Criminal Procedure Law (CPL), for example, are
separate vehicles that may require or authorize disclosure of
records due to one's status as a litigant or defendant.

As stated by the Court of Appeals in a case involving a
request made under the Freedom of Information Law by a person
involved in litigation against an agency: "Access to records of a
government agency under the Freedom of Information Law (FOIL)
(Public Officers Law, Article 6) is not affected by the fact that
there is pending or potential litigation between the person making
the request and the agency" [Farbman v. NYC Health and Hospitals
Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier
decision, the Court of Appeals determined that "the standing of one
who seeks access to records under the Freedom of Information Law is
as a member of the public, and is neither enhanced...nor
restricted...because he is also a litigant or potential litigant"
[Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court
in Farbman, supra, discussed the distinction between the use of the
Freedom of Information Law as opposed to the use of discovery in
Article 31 of the CPLR. Specifically, it was found that:

"FOIL does not require that the party
requesting records make any showing of need,
good faith or legitimate purpose; while its
purpose may be to shed light on governmental
decision-making, its ambit is not confined to
records actually used in the decision-making
process (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.)
Full disclosure by public agencies is, under
FOIL, a public right and in the public
interest, irrespective of the status or need
of the person making the request.

"CPLR article 31 proceeds under a different
premise, and serves quite different concerns.
While speaking also of 'full disclosure'
article 31 is plainly more restrictive than
FOIL. Access to records under CPLR depends on
status and need. With goals of promoting both
the ascertainment of truth at trial and the
prompt disposition of actions (Allen v.
Crowell-Collier Pub. Co., 21 NY 2d 403, 407),
discovery is at the outset limited to that
which is 'material and necessary in the
prosecution or defense of an action'" [see
Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would
not, in my opinion, affect either the rights of the public or a
litigant under the Freedom of Information Law, or the ability of an
agency to withhold records sought under the Freedom of Information
Law in accordance with the grounds for denial appearing in §87(2)
of that statute.

In sum, I believe that the Freedom of Information Law imposes
a duty to disclose records, as well as the capacity to withhold
records, irrespective of the status or interest of the person
requesting them. To be distinguished are other provisions of law
that may require disclosure based upon one's status, e.g., as a
defendant, and the nature of the records or their materiality to a
proceeding. As such, there may be a variety of "standards"
regarding disclosure that do not necessarily require like results.

Second, while I am unaware of the specific reasons for the
deletions, several of the grounds for denial in the Freedom of
Information Law may be relevant.

Of potential significance is §87(2)(b) of the Law, which
permits an agency to withhold records or portions thereof when
disclosure would constitute "an unwarranted invasion of personal
privacy". That provision might be applicable relative to the
deletion of identifying details in a variety of situations, i.e.,
where a record identifies a witness, for example.

Perhaps the most relevant provision concerning access to
records maintained by law enforcement agencies 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 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."

In my view, 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).

Another possible ground for denial is §87(2)(f), which permits
withholding to the extent that disclosure "would endanger the life
or safety of any person". The capacity to withhold on that basis
is dependent upon the facts and circumstances concerning an event.

Lastly, I point out that in a decision concerning a request
for records maintained by the office of a district attorney that
would ordinarily be exempted from disclosure under the Freedom of
Information Law, it was held that "once the statements have been
used in open court, they have lost their cloak of confidentiality
and are available for inspection by a member of the public" [see
Moore v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon that
decision, it appears that records introduced into evidence or
disclosed during a public judicial proceeding should be available.
However, in the same decision, it was also found that:

"...if the petitioner or his attorney
previously received a copy of the agency
record pursuant to an alternative discovery
device and currently possesses the copy, a
court may uphold an agency's denial of the
petitioner's request under the FOIL for a
duplicate copy as academic. However, the
burden of proof rests with the agency to
demonstrate that the petitioner's specific
requests are moot. The respondent's burden
would be satisfied upon proof that a copy of
the requested record was previously furnished
to the petitioner or his counsel in the
absence of any allegation, in evidentiary
form, that the copy was no longer in
existence. In the event the petitioner's
request for a copy of a specific record is not
moot, the agency must furnish another copy
upon payment of the appropriate fee...unless
the requested record falls squarely within the
ambit of 1 of the 8 statutory exemptions"
(id., 678).

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Suffolk County Attorney