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August 10, 1994

 

 

Ms. Carol Cronin
27 South Parker Drive
Monsey, NY 10952

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Ms. Cronin:

I have received your letter of July 29 concerning "the ongoing difficulty" you have encountered in obtaining copies of police incident reports from the Town of Ramapo.

Among the documents attached to your letter is a determination of the U.S. Department of Housing and Urban Development dated July 24 in which it was found that your neighbor engaged in discriminatory housing practices in violation of the Fair Housing Act and in which you and members of your family were awarded compensatory damages due to "economic loss, emotional distress, physical pain, and the loss of an equal housing opportunity by respondent's coercion, intimidation, threats and interference." The respondent is the neighbor, and the determination referred to several instances in which she contacted Town officials, including the Police Department, to make complaints concerning your family. None of the complaints resulted in the issuance of charges.

Having sought the incident reports prepared in response to complaints made by your neighbor, you were informed by the Town Supervisor that the Freedom of Information Law states that "access to public records can be denied if disclosure would interfere with law enforcement investigations", and that a review of the records indicated that the information within them "can result in possible criminal prosecution." As such, your requests have been denied. Notwithstanding the stated basis for denial, you wrote that the Police Department informed your daughter that there is no investigation "in progress against any member of [y]our household."

While it is true that records can ordinarily be withheld when disclosure would interfere with a law enforcement investigation, based on the information that you provided, it appears that the rationale for the denials cannot be justified and that the blanket denials of your requests are inappropriate. 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. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the grounds for denial that follow. The phrase quoted in the preceding sentence in my opinion indicates that single record or report might consist of both accessible and deniable information; it also indicates that an agency must review records sought, in their entirety, to determine which portions, if any, may justifiably be withheld. If there are portions of records that fall within one or more of the grounds for denial, those portions may be deleted, and the remainder of the records must be disclosed. Perhaps most important in relation to records pertinent to a law enforcement investigation is §87(2)(e) of the Freedom of Information Law. That provision 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."

To the extent that the records are compiled for law enforcement purposes, an agency may withhold them only to the extent that the harmful effects described in subparagraphs (i) through (iv) of §87(2)(e) would arise by means of disclosure. In this instance, in view of the detail contained in the determination by the Department of Housing and Urban Development, it would appear that disclosure at this juncture would have no or little impact upon any investigation. Moreover, according to the information given to your daughter, no investigation is pending in relation to the subject matter of the records sought. If that is so, disclosure could not interfere with a law enforcement investigation because there is no investigation. With respect to §87(2)(e)(iii), if records identify confidential sources, for example, names or other identifying details could be deleted. However, to qualify as a confidential source, it has been held that an individual must have been given a promise of confidentiality. In a case involving records maintained by the New York City Police Department relating to a sexual assault, it was held that:

"NYPD has failed to meet its burden to establish that the material sought is exempt from disclosure. While NYPD has invoked a number of exemptions with might justify its failure to supply the requested information, it has failed to specify with particularity the basis for its refusal...

"As to the concern for the privacy of the witnesses to the assault, NYPD has not alleged that anyone was promised confidentiality in exchange for his cooperation in the investigation so as to qualify as a 'confidential source' within the meaning of the statute (Public Officers Law §87[2][e][iii]" [Cornell University v. City of New York Police Department, 153 AD 2d 515, 517 (1989); motion for leave to appeal denied, 72 NY 2d 707 (1990); see also, Laureano v. Grimes, 579 NYS 2d 357, 79 AD 2d 600 (1992)].

Also of potential significance is §87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy". Where appropriate, names or other identifying details may be deleted from records that would otherwise be available to protect against unwarranted invasions of personal privacy [see Freedom of Information Law, §89(2)(a)]. If the identity of complainants is not known, often portions of records identifying them may be withheld under §87(2)(b). Nevertheless, in this case, the identity of the complainant is clearly known, and the privacy provisions would appear to be inapplicable.

Lastly, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals some fifteen years ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, supra, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, supra].

Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).

In effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to the Town Supervisor. I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Herbert Reisman, Supervisor