July 7, 1995
Ms. G.K. Albright
565 Ramona Street
Rochester, NY 14615
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, unless otherwise indicated.
Dear Ms. Albright:
I have received your letter of May 29 in which you sought assistance. Since the receipt of your correspondence, copies of a determination of your appeal rendered by Linda S. Kingsley, City of Rochester Corporation Counsel, and Wade S. Norwood, a member of the Committee on Open Government, have been sent to this office. Most recently, I also received your letter of June 30.
By way of background, you requested records pertaining to a named individual covering the period of 1992 to 1995 from the City of Rochester and the Town of Greece in the following manner: "all records in your files such as: Crime Reports, Arrest Reports, Probation Information, Convictions and/or current status of various cases, etc." You referred specifically to arrest and conviction records, contending that those records have historically been public. The City of Rochester denied access initially on the ground that disclosure would constitute "an unwarranted invasion of personal privacy", and Ms. Kingsley affirmed, citing a decision of the United States Supreme Court [U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989)]. You also wrote that the Town of Greece denied your request without informing you of the name and address of the person to whom you could appeal.
In this regard, I offer the following comments.
First, an issue of possible significance involves the requirement that an applicant "reasonably describe" the records sought. It has been held that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].
Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:
"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).
In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number. I am unaware, however, of the manner in which the agencies to which your requests were made maintain their records. If they have the ability, whether electronically or through a paper filing system, to locate or retrieve all records pertaining to an individual by means of his or her name, the records could be found, and the request would meet the standard of reasonably describing them. On the other hand, if records are kept chronologically, for example, and a search of every record is required to locate those pertaining to a named individual, the request, based on case law, would not in my opinion meet that standard.
Second, with respect to records of arrests and convictions, the general repository of those records is the Division of Criminal Justice Services (DCJS), which maintains a centralized database including criminal history information. The functions and duties of that agency are described in Article 35 of the Executive Law, §§835 to 846. In Capital Newspapers v. Poklemba (Supreme Court, Albany County, April 6, 1989), it was held that conviction records maintained by DCJS are confidential in view of the legislative history of the statutes that govern the practices of that agency. Specifically, the first ground for denial in the Freedom of Information Law, §87(2)(a), pertains to records that are "specifically exempted from disclosure by state or federal statute", and it was found that:
"Both the language of the statute and the consistent history of limited access to the criminal records maintained by DCJS lead this court to conclude that an exception to the mandate of FOIL exists with respect to the disclosure sought by petitioner.
"Having determined that POL, §87(2)(a) is applicable to the records sought by petitioner, this court shall not address the issue of whether a further exemption might be had pursuant to POL 87(2)(b) as an unwarranted invasion of personal privacy, or whether the records may be available from any other centralized source."
As such, although the U.S. Supreme Court found that disclosure of a conviction record would constitute an unwarranted invasion of personal privacy in construing the federal Freedom of Information Act, the only court to deal with the issue under the New York Freedom of Information Law reached its conclusion on a different basis. Moreover, the Court inferred that the records should be available from sources other than DCJS, for it was stated that:
"...petitioner is correct when it asserts that the transmittal of an otherwise publicly available document to a centralized facility for inclusion in a government computer bank does not per se render it immune from disclosure. However, the issue is not whether the records under the control of DCJS should be released, but rather whether the provisions of FOIL and the Executive Law, as presently constituted, mandate the result sought by petitioner.
"Certainly, the Legislature has the authority to provide for public access from a centralized location. It is equally clear that, unless otherwise sealed, a conviction record is a public document. Much has been said about potential abuses, given the ease with which these records may be obtained if the petition is sustained. Such fears are not determinative however. To argue that a criminal conviction obtained in a public proceeding in an open court system suddenly should be clothed with secrecy merely because an individual doesn't have to struggle to obtain it, makes a mockery of the right of public access. To suggest that public disclosure of conviction records is available only when it is through a difficult and time-consuming search of individual courthouse files or in local police stations, when the exact same information might be freely available if housed within a centralized computer bank, would be to create an irrational burden. Resolution of the question should not be resolved by how hard it is to discover the information sought. However, as aforesaid, the issue is not whether the information should be available, but rather, whether the Division of Criminal Justice Services has been statutorily directed to guard against public disclosure, thereby exempting it from the provision of FOIL" (emphasis added by the court).
As such, the court determined the issue by finding that the records maintained by DCJS were exempted from disclosure by statute, not because disclosure would constitute an unwarranted invasion of personal privacy. Additionally, the court inferred that conviction records are generally available from the courts in which proceedings resulted in convictions were conducted "or in local police stations."
It is my understanding that DCJS and local law enforcement agencies engage in a dissemination agreement under which a local agency agrees that data acquired from DCJS will remain confidential. However, insofar as a local government maintains conviction records independent of those acquired from DCJS, I believe that such records must be disclosed. Similarly, if, for example, criminal conviction records were used in conjunction with a criminal proceeding by a district attorney, it has been held that the district attorney must disclose those records [see Thompson v. Weinstein, 150 AD 2d 782 (1989); also Geames v. Henry, 173 AD 2d 825 (1991)]. It is also noted that while records relating to convictions may be available from the courts or other sources, when charges are dismissed in favor of an accused, records relating to those events are generally sealed pursuant to §160.50 of the Criminal Procedure Law. Therefore, if a person is arrested and the matter has not yet been finally determined, the arrest or booking record must in my view generally be made available. However, as indicated above, if a person is charged, and the charge is dismissed, the arrest and other records pertaining to the incident typically are sealed.
With respect to other records that fall within the scope of your requests, as you may be aware, 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. Since I am unaware of the contents of the records in which you are interested, or the effects of their disclosure, I cannot offer specific guidance. Nevertheless, the following paragraphs will review the provisions that may be significant in determining rights of access to the records in question.
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". That provision might be applicable relative to the deletion of identifying details in a variety of situations, i.e., where a record identifies a confidential source or a witness, for example, or includes intimate personal information.
Perhaps the most relevant provision concerning access to records maintained by law enforcement agencies 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 view, the foregoing indicates that records compiled for law enforcement purposes can only be withheld to the extent that disclosure would result in the harmful effects described in sub- paragraphs (i) through (iv) of §87(2)(e).
Another possible ground for denial 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 remaining possible 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 applies. 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.
Records prepared by employees of an agency and communicated within the agency or to another agency would in my view fall within the scope of §87(2)(g). Those records might include opinions or recommendations, for example, that could be withheld.
I point out that in a decision concerning a request for records maintained by the office of a district attorney that would ordinarily be exempted from disclosure under the Freedom of Information Law, it was held that "once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public" [see Moore v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon that decision, it appears that records introduced into evidence or disclosed during a public judicial proceeding should be available.
Lastly, the Freedom of Information Law provides direction concerning the time within which agencies must respond to requests and appeals. 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)].
Further, the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), which govern the procedural aspects of the Law, state that:
"(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall hear appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
(b) Denial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body established to hear appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer" (section 1401.7).
It is also noted that the state's highest court has held that a failure to inform a person denied access to records of the right to appeal enables that person to seek judicial review of a denial. Citing the Committee's regulations and the Freedom of Information Law, the Court of Appeals in Barrett v. Morgenthau held that:
"[i]nasmuch as the District Attorney failed to advise petitioner of the availability of an administrative appeal in the office (see, 21 NYCRR 1401.7[b]) and failed to demonstrate in the proceeding that the procedures for such an appeal had, in fact, even been established (see, Public Officers Law [section] 87[b], he cannot be heard to complain that petitioner failed to exhaust his administrative remedies" [74 NY 2d 907, 909 (1989)].
In sum, an agency's records access officer has the duty individually, or in that person's role of coordinating the response to a request, to inform a person denied access of the right to appeal as well as the name and address of the person or body to whom an appeal may be directed.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Linda S. Kingsley, Corporation Counsel
Bridgette Burch, Records Access Officer
Records Access Officer, Town of Greece
Hon. Wade S. Norwood