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November 17, 1994

 

 

Ms. Sara B. Sonne
West Sand Lake Road
P.O. Box 777
Tuxedo Park, NY 10987

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. Sonne:

I have received your letter of October 13 and the materials
attached to it. You described a series of difficulties in your
capacity as police reporter for the Tuxedo Inside/Out in obtaining
records of activity from the Village of Tuxedo Park Police
Department.

Part of the problem appears to involve semantics, particularly
in relation to the use of the phrase "police blotter". The
Department, according to the Chief of Police, does not utilize a
police blotter; rather, the Chief wrote that "we record incoming
events and occurrences on a document known as the General Incident
Report." He added that such report "may contain information not
accessible under Section 87 of the Public Officers Law." On that
basis, and because of the absence of specificity, your requests
have been rejected.

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to all agency
records, and §86(4) of the Law defines the term "record"
expansively to mean:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based on the foregoing, irrespective of whether a document is
characterized as a police blotter or a "General Incident Report" or
whether it is maintained on paper or electronically, I believe that
it would constitute a "record" subject to rights of access
conferred 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 police
blotter, a general incident report or other record might properly
be denied, the remainder might nonetheless be available and would
have to be disclosed.

Third, an applicant, in my view, is not required to identify
with particularity exactly which record, or perhaps which portion
of a record he or she may be interested in reviewing. The Freedom
of Information Law as originally enacted in 1974 required an
applicant to seek "identifiable" records [see original Law,
§88(6)]. The current provision, §89(3), however, merely requires
that an applicant "reasonably describe" the records sought.
According to two decisions rendered by the Court of Appeals, the
State's highest court, if an agency can locate and identify the
records based upon the terms of a request, the applicant has met
the responsibility of reasonably describing the records [see M.
Farbman & Sons v. New York City, 62 NY 2d 75 (1984); Konigsberg v.
Coughlin, 68 NY 2d 245 (1986)]. Therefore, I do not believe that
a journalist or member of the public can be required to seek a
portion of a report by referring to a specific incident. Rather,
an applicant could, in my opinion, request a report or reports as
they pertain to particular days or dates.

As you may be aware, 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 and often police departments use different
terms for records or reports analogous to police blotters. 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 or other record is analogous to that described in Sheehan
in terms of its contents, I believe that the public would have the
right to review it.

If the reports maintained by the Tuxedo Park Police Department
are more expansive than the traditional police blotter described in
Sheehan, portions of such reports might 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, an incident report 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 record 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 reports, 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.

Since the reports in question are prepared by employees of a
police department, I believe that they could be characterized as
"intra-agency material". However, insofar as they consist of
factual information, §87(2)(g) could not, in my opinion, be
asserted as a basis for denial.

Further, although arrest records are not specifically
mentioned in the current Freedom of Information Law, the original
Law granted access to "police blotters and booking records" [see
original Law, §88(1)(f)]. In my opinion, even though reference to
those records is not made in the current statute, I believe that
such records continue to be available, for the present law was
clearly intended to broaden rather than restrict rights of access.
Moreover, it was held by the state's highest court, the Court of
Appeals, some ten years ago that, unless sealed under §160.50 of
the Criminal Procedure Law, records of the arresting agency
identifying those arrested must be disclosed [see Johnson
Newspapers v. Stainkamp, 61 NY 2d 958 (1984)].

In sum, for reasons described earlier, I do not believe that
the Department can require an applicant to request specific entries
in conjunction with particular incidents. That kind of requirement
potentially results in a "catch-22" and would, in my view, be
inconsistent with the standard that an applicant must "reasonably
describe" the records sought. Further, the fact that some aspects
of the records might properly be withheld does not enable an agency
to withhold them in their entirety. Rather, I believe that an
agency must disclose records, to the extent required by the Freedom
of Information Law, perhaps after having made deletions in
accordance with the grounds for denial appearing in the Law.

With respect to procedural requirements, §89(3) of the Freedom
of Information Law provides direction concerning the time in which
an agency must respond to requests. Specifically, §89(3) of the
Freedom of Information Law states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision states in relevant part that:

"any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

Lastly, I do not believe that an agency can require that a
request be made on a prescribed form. To reiterate, the Freedom of
Information Law, section 89(3), as well as the regulations
promulgated by the Committee (21 NYCRR 1401.5), which have the
force of law and govern the procedural aspects of the Law, require
that an agency respond to a request that reasonably describes the
record sought within five business days of the receipt of a
request. Further, the regulations indicate that "an agency may
require that a request be made in writing or may make records
available upon oral request" [21 NYCRR 1401.5(a)]. As such,
neither the Law nor the regulations refer to, require or authorize
the use of standard forms. Accordingly, it has consistently been
advised that any written request that reasonably describes the
records sought should suffice.

It has also been advised that a failure to complete a form
prescribed by an agency cannot serve to delay a response or deny a
request for records. A delay due to a failure to use a prescribed
form might result in an inconsistency with the time limitations
imposed by the Freedom of Information Law. For example, assume
that an individual, such as yourself in the situation that you
described, requests a record in writing from an agency and that the
agency responds by directing that a standard form must be
submitted. By the time the individual submits the form, and the
agency responds to the request, it is probable that more than five
business days would have elapsed, particularly if a form is sent by
mail and returned to the agency by mail. Therefore, to the extent
that an agency's response granting, denying or acknowledging the
receipt of a request is given more than five business days
following the initial receipt of the written request, the agency,
in my opinion, would have failed to comply with the provisions of
the Freedom of Information Law.

While the Law does not preclude an agency from developing a
standard form, as suggested earlier, I do not believe that a
failure to use such a form can be used to delay a response to a
written request for records reasonably described beyond the
statutory period. However, a standard form may, in my opinion, be
utilized so long as it does not prolong the time limitations
discussed above. For instance, a standard form could be completed
by a requester while his or her written request is timely processed
by the agency. In addition, an individual who appears at a
government office and makes an oral request for records could be
asked to complete the standard form as his or her written request.

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, a copy of this opinion will be
forwarded to Chief Bortnowsky and the Village Board of Trustees.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Bill L. Bortnowsky, Chief of Police
Board of Trustees