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July 8, 1994

 

 

Richard Reade
Box 2831
Setauket, NY 11733

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. Reade:

I have received your letter of June 27 and the correspondence attached to it.

By way of background, following what you characterized as an "unwarranted trespass" by a Village of Old Field constable, you asked the Village Board of Trustees to direct that its constable staff stay off of your property, and you requested copies of the "constabulary log" for three specific dates, "sanitized only of any names and/or addresses of non-employees of the Village". In response to your request, you were informed that:

"Log entries on those dates contain absolutely no mention of you. These Log entries are, however, replete with references to incidents occurring within the Village which, if turned over would (1) constitute an unwarranted invasion to personal privacy of the Village residents involved therein; (2) consist of inter-agency communications; (3) consist of intra-agency communications; (4) involve suspected violations of law for which no charges were ever filed although a suspect may be named; (5) interfere with the civil rights of those whose charges have been dismissed or resulted in acquittal; or (6) interfere with pending investigations."

It is your view that the reasons for the denial are inappropriate, "[b]ecause any and all names, addresses, and identification numbers that could be traced to individuals or agencies were requested obliterated, no personal privacy, no civil rights, no communications, no suspected law violations, nor pending investigations would be affected".

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

First, it is noted that the Freedom of Information Law pertains to existing records. Section 89(3) of the Law states in part that an agency need not create or prepare records. In the context of the issues that you presented, there is nothing in the Freedom of Information Law that pertains to records that must be maintained or entries made in those records by constables or other law enforcement officials. While the Village might have established rules concerning the contents of or requirements pertaining to entries made in a constabulary log, any such rule would be separate from obligations imposed 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. I point out, too, 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.

While I am unfamiliar with the contents of the logs in question, it appears that they may be similar to police blotters. I point out that the phrase "police blotter" is not specifically defined in any statute. It is my understanding that it is a term that has been used, more than anything else, based upon custom and usage. Further, the contents of what might be characterized as a police blotter 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 log or blotter is analogous to that described in Sheehan in terms of its contents, I believe that the public would have the right to review it.

When a log or blotter is more expansive than that described in Sheehan 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). Further, when charges are dismissed in favor of an accused, the charges and related records are often sealed pursuant to §160.50 of the Criminal Procedure Law.

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. Since you indicated that those kinds of details could be deleted, §87(2)(b) would not likely be applicable. 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 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 records relating to a blotter entry such as investigative reports 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.

When police blotters, logs or other records are prepared by agency employees, I believe that they could be characterized as "intra-agency materials". However, insofar as they consist of factual information, for example, they would be available, unless a different ground for denial applies.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: Board of Trustees
Mary E. Nichols, Village Clerk