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September 6, 1995

 

 

Ross Pinckney
Police Commissioner
Town of Deerpark
Police Department
228 Route 209, Box 119
Huguenot, NY 12746

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 Commissioner Pinckney:

As you are aware, I have received your letter of August 18, as well as the correspondence attached to it.

Having been served with a request from a person who is seeking "copies of traffic tickets issued prior to and subsequent to a ticket he received on May 20, 1995 to individuals other than himself", you expressed the belief "that by granting this request [you] may be infringing on someone else's privacy." In addition, you noted that "ticket books are issued in lots of 25 to a vehicle," and that the tickets prior and subsequent to that issued to the person making the request "may have been issued at a different date, time and place and by a different officer..." As such, they may be irrelevant to the matter.

You have sought an advisory opinion on the matter. In this regard, I offer the following comments.

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.

In general, when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the use or relevance of the records is in my opinion immaterial.

While three of the grounds for denial are in my opinion relevant, I do not believe that any could justifiably be asserted.

One of the grounds, §87(2)(b), permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." While an allegation concerning an individual's conduct could in my view and under appropriate circumstances be withheld as an unwarranted invasion of personal privacy, a finding of a violation which indicates that an individual has failed to comply with law, i.e., by means of the issuance of a traffic ticket, would in my opinion result in a permissible invasion of one's privacy.

Also of significance is §87(2)(g), which 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.

The issuance of citations or summonses indicates that a violation has been found. I believe that such a finding would consist of "factual" information accessible under §87(2)(g)(i), as well as a final agency determination accessible under §87(2)(g)(iii).

The remaining ground for denial of potential relevance is §87(2)(e), which states that an agency may 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."

The language quoted above is based upon potentially harmful effects of disclosure and is generally cited in the context of criminal law enforcement. From my perspective, the effects of disclosure described in §87(2)(e) would rarely, if ever, arise in relation to traffic summonses. Further, it is questionable, in my view, whether the records in question could be characterized as having been "compiled for law enforcement purposes." Even if they could be so characterized, it does not appear that any of the harmful effects described in subparagraphs (i) through (iv) of §87(2)(e) would arise by means of disclosure.

Lastly, in a case involving a request by a newspaper for speeding tickets issued by the State Police, the Court of Appeals held that the records must be disclosed, unless they were sealed pursuant to §160.50 of the Criminal Procedure Law [see Johnson Newspapers v. Stainkamp, 61 NY 2d 958 (1984)].

Based upon the foregoing, unless sealed under the Criminal Procedure Law, the records in question are in my view available under the Freedom of Information Law, for I do not believe that any of the grounds for denial could appropriately be asserted to withhold those records.

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

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