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June 29, 1994

 

 

Mr. Gary Grant
Reporter
WXXI Reports
P.O. Box 21
Rochester, NY 14601

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. Grant:

I have received your letter of June 9 and the correspondence relating to it. You have sought an advisory opinion concerning the Freedom of Information Law.

Having submitted a request for records of the Town of Brighton Police Department, some of the records were disclosed. However, the Chief of Police denied the request as it pertains to "dispatcher logs" on the ground that they "constitute intra-agency communication and are not subject to exception as stipulated in §87-2(g) of the Freedom of Information Law." Your appeal was denied and the determination cited the same provision and §87(2)(e) as an additional basis for denial.

In this regard, 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.

While I agree with Town officials' characterization of the records in question as "intra-agency materials" that fall within the scope of §87(2)(g), the contents of those materials serve as the basis for determining the extent to which they must be disclosed or may be withheld. Although §87(2)(g) represents a possible basis for a denial of access, due to its structure, it often requires disclosure.

Specifically, §87(2)(g) enables 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.

In some instances, depending upon the contents of records, significant portions of intra-agency materials may be accessible under the Law. For example, in Ingram v. Axelrod, the Appellate Division held that:

"Respondent, while admitting that the report contains factual data, contends that such data is so intertwined with subject analysis and opinion as to make the entire report exempt. After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 ('Chronology of Events' and 'Analysis of the Records') to be disclosable. These pages are clearly a 'collection of statements of objective information logically arranged and reflecting objective reality'. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance records, list of interviews) should be disclosed as 'factual data'. They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve to app den 48 NY2d 706). Respondents erroneously claim that an agency record necessarily is exempt if both factual data and opinion are intertwined in it; we have held that '[t]he mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion' (Matter of Polansky v Regan, 81 AD2d 102, 104; emphasis added). Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable" [90 AD 2d 568, 569 (1982)].

Similarly, the Court of Appeals has specified that the contents of intra-agency materials determine the extent to which they may be available or withheld, for it was held that:

"While the reports in principle may be exempt from disclosure, on this record - which contains only the barest description of them - we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for 'intra-agency materials,' as claimed by respondents. To the extent the reports contain 'statistical or factual tabulations or data' (Public Officers Law section 87[2][g][i], or other material subject to production, they should be redacted and made available to the appellant" (id. at 133).

In short, the statistical or factual portions, if any, as well as any policy or determinations, found within intra-agency materials would be available, unless a different ground for denial could properly be asserted. As in the case of Ingram, the records in question may consist of a "chronology of events" or a "collection of statements of objective information logically arranged and reflecting objective reality."

The provision cited as an alternative basis for denial, §87(2)(e), authorizes 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."

Section 87(2)(e) serves as a basis for denial only to the extent that the harmful effects described in paragraphs (i) through (iv) would arise by means of disclosure. From my perspective, it is difficult to envision how disclosure of a dispatch log, as I understand its contents, would result in those kinds of harm. Moreover, the log may be prepared in the ordinary course of business, rather than for a law enforcement purpose. If that is so, §87(2)(e), in my view, would not apply.

In sum, for the reasons described in the preceding commentary, I believe that the records should be disclosed in great measure, if not in their entirety.

In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to Town officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Thomas M. Voelkl, Chief of Police
Marion L. Brown, Town Clerk