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April 29, 1994

 

 

Mr. Henry Goodison
84-B-2116
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. Goodson:

I have received your letter of March 21. Having requested
records from the New York City Police Department, although some
were disclosed, "DD5's and police officers' memo books entries were
withheld on the basis of §87(2)(e)(iii) of the Freedom of
Information Law. It was also contended that a police officer's
memo book is the personal property of the officer.

You have sought my advice on the matter. In this regard, I
offer the following comments.

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.

With regard to DD5's, in Mitchell v. Slade, it was found that:

"[t]he Motion Court, after reviewing the
documents in camera, declined to dismiss the
petition and held that respondent had failed
to meet its burden of proving exemption for
the redacted DD-5 follow up report. The
Motion Court held that the exceptions
contained in Public Officers Law §87(2) did
not apply in this factual context, citing
Cornell Univ. v. City of N.Y. Police Dept.
(153 Ad 2d 515), and ordered production of the
DD-5 with appropriate redaction. On this
record, after a careful review of the
documents produced to the Motion Court, we are
satisfied that the materials are not exempt
under the law enforcement exemption (Public
Officers Law §87[2][e] or the intra-agency
(Public Officers Law §87[2][g])" [173 Ad 2d
226, 227 (1991)].

In my opinion, based upon Mitchell, the "factual context", the
specific contents of the records, and the effects of their
disclosure are the factors that must be considered in determining
the extent to which those records may be withheld or, conversely,
must be disclosed.

The most significant provision in the Freedom of Information
Law concerning police reports and similar records is §87(2)(e),
which enables 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."

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).

The other basis for denial of potential significance,
§87(2)(g), 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 applies. 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.

Again, I believe that the contents of the records and the
effects of disclosure determine rights of access, and that a policy
of denying requests for DD-5's in every instance is inconsistent
with the requirements of the Freedom of Information Law.

It has also been held that police officers' memo books are
agency records subject to rights conferred by the Freedom of
Information Law [see Laureano v. Grimes, 579 NYS 2d 357, 179 AD 600
(1992)]. While I am not suggesting that police officers' memo
books must be disclosed in their entirety, based upon Laureano, I
believe that those records fall within the scope of the Freedom of
Information Law and are accessible or deniable, in whole or in
part, depending upon their contents and based upon an analysis
similar to that described by the court in Laureano. In that
decision, one of the considerations was whether persons who had
made statements were promised confidentiality. When no such
promise is made, it has been held that §87(2)(e)(iii) may not serve
as a basis for denial [see Cornell University v. City of New York
Police Department, 153 AD 2d 515, appeal denied, 75 NY 2d 707
(1990)]. The decision also pointed out that confidentiality would
end when witnesses who gave statements later testified at a trial
[see Moore v. Santucci, 151 AD 2d 677 (1989)].

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Susan Rosenberg