October 31, 1995
Ms. Marie B. Di Gilio
P.O. Box 272
Valley Stream, NY 11582-0272
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. Di Gilio:
I have received your letter of October 12 in which you described a series of difficulties in your attempts to obtain information from the New York City Police Department. In conjunction with your remarks, I offer the following comments.
First, the Freedom of information Law provides direction concerning the time and manner in which agencies 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)].
For your information, the person designated to determine appeals at the Department is Janet Lennon, Deputy Commissioner, Legal Matters.
Second, I point out that the Freedom of Information Law pertains to existing records. Section 89(3) of that statute states in part that an agency is not required to create a record in response to a request. Therefore, if, for example, there is no record indicating the number of officers assigned to a certain post during a certain time period, the Department would not be obliged to prepare such a record on your behalf.
Another aspect of §89(3) that may be relevant involves the requirement that an applicant must "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. Since I am unfamiliar with the Department's record-keeping systems, I cannot advise regarding the extent to which your request reasonably described the records. However, insofar as the Department can locate and identify the records sought based on the terms of your request, I believe that your request met the standard required by law.
As it pertains to existing records, 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. From my perspective, to the extent that the information sought exists in the form of a record or records, with one exception, it must be disclosed.
With respect to the assignments of officers, I believe that the only potential basis for denial would be §87(2)(f). That provision states that an agency may withhold records or portions thereof to the extent that disclosure "would endanger the life or safety of any person". The proper assertion of that provision is in my view dependent upon attendant facts and circumstances. If, for example, a police department is small and a request is made regarding assignments or schedules to be carried out in the future, §87(2)(f) might be validly cited to withhold records. If it is known in advance that there will be police patrols in one part of a municipality but not another during a particular period, disclosure might enable potential lawbreakers to take advantage of the absence of a patrol, thereby endangering lives and safety. However, if a police department is large, and if a request does not involve the placement of officers but merely their presence during a shift, it is questionable in my view whether §87(2)(f) could properly be asserted. Further, if a request pertains to prior activity, i.e., how many officers were present during a certain shift last year, it is difficult to envision how disclosure, after the fact, could endanger anyone's life or safety.
I point out that in a decision affirmed by the State's highest court dealing with attendance records maintained by an agency specifically those indicating the days and dates of sick leave claimed by a particular police officer, it was found that the records are accessible. In that case, the Appellate Division found that:
"One of the most basic obligations of any employee is to appear for work when scheduled to do so. Concurrent with this is the rights of an employee to properly use sick leave available to him or her. In the instant case, intervenor had an obligation to report for work when scheduled along with a right to use sick leave in accordance with his collective bargaining agreement. The taxpayers have an interest in such use of sick leave for economic as well as safety reasons. Thus it can hardly be said that disclosure of the dates in February 1983 when intervenor made use of sick leave would constitute an unwarranted invasion of privacy. Further, the motives of petitioners or the means by which they will report the information is not determinative since all records of government agencies are presumptively available for inspection without regard to the status, need, good faith or purpose of the applicant requesting access..."[Capital Newspapers v. Burns,109 AD 2d 92, 94-95 (1985), aff'd 67 NY 2d 562 (1986)].
Based on the preceding commentary, I believe that attendance records pertaining to public employees must be disclosed.
With regard to maintenance and related records, it appears that those kinds of records, if they exist and can be located, would be accessible, for none of the grounds for denial would appear to apply.
Lastly, records pertaining to a named police officer and his training record might justifiably be denied. The initial ground for denial of the Freedom of Information Law, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §50-a of the Civil Rights Law. In brief, that statute provides that personnel records of police and correction officers that are used to evaluate performance toward continued employment or promotion are confidential. The Court of Appeals, the state's highest court, in reviewing the legislative history leading to its enactment, has held that §50-a is not a statute that exempts records from disclosure when a request is made under the Freedom of Information Law in a context unrelated to litigation. More specifically, in a case brought by a newspaper, it was found that:
"Given this history, the Appellate Division correctly determined that the legislative intent underlying the enactment of Civil Rights Law section 50-a was narrowly specific, 'to prevent time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action' (Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 109 AD 2d 92, 96). In view of the FOIL's presumption of access, our practice of construing FOIL exemptions narrowly, and this legislative history, section 50-a should not be construed to exempt intervenor's 'Lost Time Record' from disclosure by the Police Department in a non-litigation context under Public Officers section 87(2)(a)" [Capital Newspapers v. Burns, 67 NY 2d 562, 569 (1986)].
It was also found that the exemption from disclosure conferred by §50-a of the Civil Rights Law "was designed to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination" (id. at 568).
In another decision, which dealt with unsubstantiated complaints against correction officers, the Court of Appeals held that the purpose of §50-a "was to prevent the release of sensitive personnel records that could be used in litigation for purposes of harassing or embarrassing correction officers" [Prisoners' Legal Services v. NYS Department of Correctional Services, 73 NY 2d 26, 538 NYS 2d 190, 191 (1988)].
If your request was made in the context of current or perhaps future litigation, §50-a of the Civil Rights Law would likely bar disclosure of records identifiable to a police officer that can be characterized as personnel records that are used to evaluate performance toward continued employment or promotion.
I hope that I have been of assistance.
Robert J. Freeman
cc: Lt. Joseph Cannata