NY.gov Portal State Agency Listing

 

May 25, 1994

 

 

Ms. Mary Troni
169 Old Church Road
Greenwich, CT 06830

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. Troni:

I have received your letter of April 19 and the materials
attached to it.

Having requested the "daily sheets of March 30, 1994
indicating calls of officers on that date (Received)", the Village
of Rye Brook Police Department disclosed a log sheet, but deleted
certain items. Although various details were made available, the
information in the columns under the headings of "location", "type
of call" and "call back #" was deleted.

It is your view that the log must be disclosed in its
entirety, and you sought my advice on the matter. In this regard,
I offer the following comments.

First, 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. I point out
that the introductory language of §87(2) refers to the authority to
withhold "records or portions thereof" that fall within the scope
of one or more of the grounds for denial that follow. Based on the
quoted language, I believe that there may be situations in which a
single record might be both available or deniable in part.
Further, the same language, in my opinion, imposes an obligation on
an agency to review records sought in their entirety to determine
which portions, if any, may justifiably be withheld. As such, even
though some aspects of a record might properly be denied, the
remainder might nonetheless be available and would have to be
disclosed.

Second, it appears that the log sheet contains information
that would be included in a typical police blotter. Although the
phrase "police blotter" is not defined in any statute and the
contents of police blotters may vary from one police department to
another, in Sheehan v. City of Binghamton [59 AD 2d 808 (1977)], it
was determined that, based on custom and usage, a police blotter is
a log or diary in which any event reported by or to a police
department is recorded. The decision specified that a traditional
police blotter contains no investigative information, but rather
merely a summary of events or occurrences and that, therefore, it
is accessible under the Freedom of Information Law. When a police
blotter is analogous to that described in Sheehan in terms of its
contents, I believe that the public would have the right to review,
copy or obtain a copy of it.

In unusual instances, there may be certain entries under the
columns that were deleted that could properly be withheld.
However, the deletion of each entry under those columns could not,
in my view, be justified. For instance, although each entry under
the column entitled "location" was deleted, a response by a police
vehicle to a call is generally a public event, particularly, if
lights are flashing or sirens are blaring; any member of the public
can be aware of the event. Similarly, under the heading of "type
of call", the nature of an event to which a police officer responds
call often readily be ascertained by the public. Again, a blanket
denial of entries in that column would appear to be inappropriate.

While the deletions of three columns referenced earlier in
their entirety appears to have been unjustified, portions of the
log might properly be withheld, depending upon their contents and
the effects of disclosure. Several grounds for denial may be
relevant, and it is emphasized that many of them are based upon
potentially harmful effects of disclosure. The following
paragraphs will review the grounds for denial that may be
significant.

The initial ground for withholding, §87(2)(a), pertains to
records that are "specifically exempted from disclosure by state or
federal statute". In brief, when a statute exempts particular
records from disclosure, those records may, in my view, be
considered "confidential". For instance, a blotter or other record
might refer to the arrest of a juvenile. In that circumstance, a
record or portion thereof might be withheld due to the
confidentiality requirements imposed by the Family Court Act (see
§784).

Also of potential significance is §87(2)(b) of the Freedom of
Information Law, which permits an agency to withhold records or
portions thereof when disclosure would constitute "an unwarranted
invasion of personal privacy". It might be applicable relative to
the deletion of identifying details in a variety of situations,
such as domestic disputes, complaints that neighbors' dogs are
barking, or where a record identifies a confidential source or a
witness, for example.

The next ground for denial of relevance 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 opinion, a police blotter or log containing the kind of
information described in Sheehan could likely be characterized as
a record compiled in the ordinary course of business, rather than
a record "compiled for law enforcement purposes". When that it so,
§87(2)(e) would not be applicable. More detailed blotters or logs
would likely fall within the scope of §87(2)(e). Those records
would be accessible or deniable, depending upon their contents and
the effects of disclosure.

Another ground for denial of possible relevance 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.

The last relevant ground for denial is §87(2)(g). The cited
provision 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 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.

Since a police blotter is prepared by employees of a police
department, I believe that it could be characterized as "intra-agency material". However, it would generally consist of factual
information. As such, §87(2)(g) could not, in my opinion, be
asserted as a basis for denial.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Records Access Officer