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January 24, 1994

 

 

Ms. Diane G. Rahn
Box 181
Holland, NY 14080

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. Rahn:

As you are aware, I have received your letter of December 20.
Please accept my apologies for the delay in response.

Attached to your letter is a copy of an appeal directed to
Timothy Greenan, West Seneca Town Attorney, who serves as the
Town's appeals officer for purposes of the Freedom of Information
Law. Your appeal involves a denial of access to certain records
relating to your arrest in April. Specifically, you have asked to
hear and copy certain tape recordings of communications that you
characterized as dispatch and telephone tracks. In your appeal,
you referred to an appointment to listen to the recordings and
wrote that:

"Captain Daly rushed through everything in
about 20 minutes. He put all requested
channels on at the time (#1, 2, 13) as well as
#11, and 3, 4 (911 tracks) which I didn't need
to hear. When messages started to overlap
into a garbled mess, he said it wasn't
important anyway. When I asked him to play
tracks #6-10 for just 5 minutes to try to
clear up previous discrepancy, he refused
saying there was nothing on those tracks,
whereupon he left the room abruptly which
ended the meeting.

Upon listening to my copy of the tape later
and after doing most of the aforementioned
research, I realized that track #13 could not
be the true CPS track. It was a dispatch
track (i.e. 'Car 2 to radio'); the car was
talking to their dispatcher, not to another
town policeman (i.e. 'West Seneca to East
Aurora').

On 12/14/93 Captain Daly denied further access
to hear the correct CPS track. When I said it
sounded like the Orchard Park dispatch track,
he said other police can talk on the CPS
track. I said 'But Orchard Park wasn't
talking to another police agency'. He said
they didn't have an Orchard Park track. I
said 'You told me track 14 was Orchard Park'.
He said this O. Park track was used for their
'repeater' track. I asked 'Repeater for the
CPS track'? He said 'Yes'. I said 'I thought
we heard the CPS track before on track #13'?
He then stated he had no more time for me and
hung up on me to end the conversation.

Following this, I was informed by Central
Police Service (CPS) at the Rath Building in
Buffalo that they have a tower in Concord that
receives transmissions on the county band
frequently and then repeats it to the
receiving town police on a different
frequency. He clarified that Orchard Park is
not part of this repeater system (emphasis
yours)."

You have asked for assistance in the matter. In this regard,
I offer the following comments.

First, it is emphasized at the outset that the Freedom of
Information Law is applicable to all records of an agency and that
§86(4) of the Law defines the term "record" to mean:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based upon the foregoing, tape recordings maintained by a police
department would clearly constitute "records" subject to rights
conferred by the Freedom of Information Law.

Second, 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 grounds for
denial appearing in §87(2)(a) through (i) of the Law. In my
opinion, insofar as the recordings in question were broadcast and
could have been heard by anyone with a scanner or public band
radio, there would be no basis for denial, for the information
contained on the tapes would have been effectively disclosed when
it was transmitted.

Third, although you were "rushed" while attempting to listen
to the tapes, it appears that there had been a decision to grant
access to those records. If that was the case, to comply with the
Freedom of Information Law, I believe that the agency would have
been required to provide meaningful access by permitting you to
listen to the tapes in a manner that would have enabled you to
hear, as well as possible, the information contained on the tapes.
It is noted that records accessible under the Freedom of
Information Law must be made available for inspection and copying
pursuant to §87(2) of the Law. Inspection in this instance in my
opinion would involve listening to a tape recording. Further,
under §89(3), upon payment of the appropriate fee, an agency must
provide copies of accessible records.

Fourth, even if there are aspects of the tapes that were not
transmitted via the public airwaves, while one or more of the
grounds for denial may be relevant to an analysis of rights of
access, a blanket denial of access would in my opinion be
inconsistent with the requirements of the Freedom of Information
Law.

For instance, §87(2)(b) of the Freedom of Information Law
permits an agency to withhold records to the extent that disclosure
would constitute "an unwarranted invasion of personal privacy".
That provision may be relevant with respect to portions of
recordings pertaining to person other than yourself.

Perhaps the most significant provision concerning access to
records maintained by a police department is §87(2)(e) of the
Freedom of Information Law. That provision 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."

Based upon the foregoing, the capacity to deny access is
limited to the circumstances involving harmful effects of
disclosure described in subparagraphs (i) through (iv). At this
juncture, it does not appear that disclosure would interfere with
an investigation or judicial proceeding or deprive a person of a
right to a fair trial; further, the records sought would not appear
to reveal any unusual or non-routine criminal investigative
technique or procedure or identify a confidential source. If those
assumptions are accurate, §87(2)(e) would not serve as a valid
basis for withholding.

The remaining provision of possible relevance is §87(2)(g),
which authorizes 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.

If a tape consists of factual information or perhaps
instructions to staff that affect the pubic, it would be available,
unless a different ground for denial could properly be asserted.
As you may be aware, despite an attempt to rely upon §87(2)(g) to
deny access, it was held by the Appellate Division, Fourth
Department, that "tape recordings of certain communications
broadcast over public radio" must be disclosed [Buffalo
Broadcasting Co., Inc. v. City of Buffalo, 126 AD 2d 983 (1987)].

Lastly, you referred to a request that the agency "certify in
writing that tracks #11 and 13 were true copies of the dispatch and
CPS tracks respectively". In this regard, §89(3) of the Freedom of
Information Law states in part that when a record is available upon
payment of the proper fee, an agency "shall provide a copy of such
record and certify to the correctness of such copy if so
requested..."

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Paul Clark, Supervisor
Timothy Greenan, Town Attorney