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April 8, 1994

 

 

Mr. Richard Warner
The Legal Aid Society
Criminal Defense Division
175 Remsen Street
Brooklyn, NY 11201

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. Warner:

As you are aware, I have received your letter of March 3.
Please accept my apologies for the delay in response.

You have sought an advisory opinion concerning rights of
access to "Police Academy course materials for the identification
training of undercover police officers...and any other materials
used to train undercover police officers in the identification of
sellers and buyers in undercover narcotics operations." Having
spoken with staff at the New York City Police Department, you
explained that you are "not seeking any investigative techniques",
but rather the materials "relied upon [by] the officers when they
assert that they 'have been specially trained in the identification
of sellers'." You also expressed the view that disclosure would
not compromise investigative techniques, for you are not seeking
records reflective of officers' "tactics", and "[a]n alleged seller
could not use their training materials to avoid being identified
because his identification relies upon the undercover's expertise
and training in identification of specific individuals, not in the
larger tactics used to recognize and buy narcotics or in how to
design the 'set'."

The records in question were referenced in a request that
included other records that was granted in part. Nevertheless,
none of the records described in the preceding paragraph were
disclosed. When you asked whether the failure to provide the
materials represented a denial of the request, the staff person
with whom you spoke "refused to answer if it was a denial and said
that he had requested the materials and if they weren't turned
over, then they don't exist."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to existing
records, and §89(3) of the Law states in part that an agency need
not create a record in response to a request. If indeed the
Department maintains no records reflective of the information
sought, the Freedom of Information Law, in my view, would be
inapplicable.

Second, without questioning the veracity of the person with
whom you communicated, if there are existing records that fall
within the scope of the request, I believe that you could consider
the request to have been denied. In that event, you may appeal the
denial pursuant to §89(4)(a) of the Freedom of Information Law,
which states in part that:

"any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive or
governing body of the entity, or the person
thereof designated by such head, chief
executive, or governing body, who shall within
ten business days of the receipt of such
appeal fully explain in writing to the person
requesting the record the reasons for further
denial, or provide access to the record
sought."

For your information, the person designated to determine appeals at
the New York City Police Department is Susan Rosenberg, Assistant
Commissioner, Civil Matters.

Third, as a general matter, the Freedom of Information Law is
based upon a presumption of access. Stated differently, all record
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. From my
perspective, insofar as records that are the subject of your
inquiry exist, three of the grounds for denial may be relevant to
your inquiry.

Specifically, §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..."

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 the records would consist of
instructions to staff that affect the public or an agency's policy.
Therefore, I believe that they would be available, unless a
different basis for denial could be asserted.

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).

While I am unfamiliar with the records in question, it would
appear that those portions which, if disclosed, would enable
potential lawbreakers to evade detection could likely be withheld.
It is noted that in another 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)].
Nevertheless, other portions of the records might be "routine" and
might not if disclosed preclude employees from carrying out their
duties effectively.

Lastly, the remaining ground for denial of possible relevance
is §87(2)(f). That provision permits an agency to withhold records
when disclosure "would endanger the life of safety of any person."
To the extent that disclosure would endanger the life of safety of
officers or others, it appears that §87(2)(f) would be applicable.

In sum, while some aspects of the records, if they exist,
might be deniable, others must in my opinion be disclosed in
conjunction with the preceding commentary.
I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Sgt. William J. Matusiak, Records Access Officer
Charles Ellis, Paralegal