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December 4, 1996

 

 

Mr. Michael F. McAndrew
Reporter
The Post-Standard and Herald Journal
Clinton Square - PO Box 4915
Syracuse, NY 13221-4915

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 Mr. McAndrew:

I have received your letter of October 28. Please accept my apologies for the delay in response. You have sought guidance concerning rights of access to a variety of records.

The initial issue pertains to a request for records relating to a 1988 suicide investigation that was denied by the Division of State Police. The denial states that "[t]he records you seek are intra agency records for which an exemption from disclosure is provided. In addition, the release of these records would constitute an unwarranted invasion of the personal privacy of those concerned."

In this regard, 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. While some aspects of the records in question might properly be withheld, a recent decision by the Court of Appeals, the State's highest court, indicates that a blanket denial of access to records characterized as intra-agency materials would likely be inappropriate.

The case involved "complaint follow-up reports" prepared by the New York City Police Department officers that were denied on the basis of §87(2)(g) of the Freedom of Information Law. That provision enables 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.

In its analysis of the matter, the decision states that:

"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][111]). However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)...

"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][i]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182).

"Against this backdrop, we conclude that the complaint follow-up reports contain substantial factual information available pursuant to the provisions of FOIL. Sections of the report are devoted to such purely factual data as: the names, addresses, and physical descriptions of crime victims, witnesses, and perpetrators; a checklist that indicates whether the victims and witnesses have been interviewed and shown photos, whether crime scenes have been photographed and dusted for fingerprints, and whether neighborhood residents have been canvassed for information; and a blank space denominated 'details' in which the officer records the particulars of any action taken in connection with the investigation.

"However, the Police Department argues that any witness statements contained in the reports, in particular, are not 'factual' because there is no assurance of the statements' accuracy and reliability. We decline to read such a reliability requirement into the phrase 'factual data', as the dissent would have us do, and conclude that a witness statement constitutes factual data insofar as it embodies a factual account of the witness's observations. Such a statement, moreover, is far removed from the type of internal government exchange sought to be protected by the intra-agency exemption (see, Matter of Ingram v. Axelod, 90 AD2d 568, 569 [ambulance records, list of interviews, and reports of interviews available under FOIL as 'factual data']). By contrast, any impressions, recommendations, or opinions recorded in the complaint follow-up report would not constitute factual data and would be exempt from disclosure. The holding herein is only that these reports are not categorically exempt as intra-agency material. Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" [Gould, Scott and DeFelice v. New York City Police Department, __ NY2d __, November 26, 1996; emphasis added by the Court].

The other provision of apparent significance, §87(2)(b), permits an agency to withhold records to the extent that disclosure would result in "an unwarranted invasion of personal privacy." There are no decisions rendered under the Freedom of Information Law of which I am aware that have dealt squarely with the privacy of the deceased. Having discussed the issue with national experts, there is no clear consensus. Some contend that when a person dies, the ability of an agency to withhold records to protect his or her privacy disappears. Others suggest that privacy of a deceased should be protected for a certain, arbitrary period of time (i.e., two years, five years, ten years, etc.). Perhaps the greatest degree of agreement involved the point of view that records about a deceased are generally public, but that those portions which if disclosed would "disgrace the memory" of the deceased may be withheld.

From my perspective, the last suggestion is most appropriate. I believe that a great deal of information pertaining to a deceased essentially becomes innocuous by virtue of his or her death. In rare circumstances, however, intimate details of an individual's life might indeed disgrace his or her memory, and arguably, those kinds of details might justifiably be withheld. In the context of a suicide, the privacy of others might also be considered. If, for example, a suicide victim left a note indicating that he killed himself because his mother loved his brother but not himself, that element of the note might be withheld to protect not only the memory of the deceased, but also his mother and brother. On the other hand, if the note simply said that he killed himself because the world was too much to bear, there would be no significant privacy implications, and the note should be disclosed.

A second issue involves a denial of access to "gun permit applications and permit records." By way of background, §400.00 of the Penal Law pertains to the licensing of firearms. Subdivision (3) of §400.00, entitled "Applications", states in relevant part that:

"Blank applications shall, except in the city of New York, be approved as to form by the superintendent of state police. An application shall state the full name, date of birth, residence, present occupation of each person or individual signing the same, whether or not he is a citizen of the United States, whether or not he complies with each requirement for eligibility specified in subdivision one of this section and such other facts as may be required to show the good character, competency and integrity of each person or individual signing the application. An application shall be signed and verified by the applicant. Each individual signing an application shall submit one photograph of himself and a duplicate for each required copy of the application. Such photographs shall have been taken within thirty days prior to filing the application. In case of a license as gunsmith or dealer in firearms, the photographs submitted shall be two inches square, and the application shall also state the previous occupation of each individual signing the same and the location of the place of such business, or of the bureau, agency, subagency, office or branch office for which the license is sought, specifying the name of the city, town or village, indicating the street and number and otherwise giving such apt description as to point out reasonably the location thereof."

Subdivision (4) relates to the investigation of statements made in an application before it may be approved. That provision includes a requirement that fingerprints be taken and states in part that "No such fingerprints may be inspected by any person other than a peace officer, who is acting pursuant to his special duties, or a police officer, except on order of a judge or justice of a court of record..."

Subdivision (5), entitled "Filing of Approved Applications", was recently amended. Until November 1 of last year, §400.00(5) stated in part that: "The application for any license, if granted, shall be a public record." No longer does the statute so state; as amended, it now provides that: "The name and address of any person to whom an application for any license has been granted shall be a public record." Other than the preceding statement and the direction in subdivision (4) concerning fingerprints, I am unaware of any aspect of §400.00 that specifies that the remaining portions of an approved application are available to the public or that they must be withheld. Due to the absence of specific direction in that statute, I believe that those remaining portions of an approved application are subject to the Freedom of Information Law. This is not to say that they must be disclosed; on the contrary, I am suggesting that they may be accessible or deniable, depending on their nature and the effects of disclosure.

Of potential significance is §87(2)(b), which, again, authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Additionally, §89(2)(b) describes a series of examples of unwarranted invasions of personal privacy. In my opinion, numerous aspects of an approved application could be withheld based on the provisions cited above, such as personal physical characteristics, social security number, character references, information regarding health and mental condition, alcoholism and drug use, and similar intimate personal information. However, other information must in my view be disclosed, such as the date and county of issue, expiration date, the name and title of the licensing officer, and applicable restrictions. I do not believe that those kinds of items would constitute intimate or personal details regarding a licensee and that they would, therefore, be available under the Freedom of Information Law.

The other ground for denial of potential significance, §87(2)(f), states that an agency may withhold records to the extent that disclosure "would endanger the life or safety of any person." Arguably, the portion of the application describing a pistol or revolver might be withheld under §87(2)(f) based on a contention that disclosure would endanger the life or safety of licensees and potentially others as well.

In sum, while the names and addresses of licensees are clearly available and their fingerprints are clearly confidential, I believe that the remaining portions of approved applications are accessible, in part, under the Freedom of Information Law in accordance with the preceding commentary. Again, highly personal information would, in my opinion, constitute an unwarranted invasion of personal privacy if disclosed. Further, notations regarding particular firearms could likely be withheld due to considerations of safety and security.

The third area of inquiry involves access to "jail visitation logs." If a visitors log or similar documentation is kept in plain sight and can be viewed by any person, and if the staff at the facility have the ability to locate portions of the log of your interest, I believe that those portions of the log would be available. However, if a visitors log or similar documents are not kept in plain sight and cannot ordinarily be viewed, it is my opinion that the log could be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy. In short, the identities of those with whom a person associates is, in my view, nobody's business.

Lastly, you sought an opinion concerning access to "felony conviction docket books" maintained by the Tompkins County Clerk and the Clerk of the Supreme Court. In this regard, I note that the Freedom of Information Law excludes the courts and court records from its coverage [see definitions of "judiciary" and "agency", §86(1) and (3) respectively]. This is not to suggest, however, that court records need not be disclosed. On the contrary, other statutes may provide broad rights of access to court records. For instance, §255 of the Judiciary Law states, in brief, that a clerk of court must search for and make available the records in his possession. Perhaps more relevant is §255-b, which states, in its entirety, that "A docket-book, kept by a clerk of a court, must be kept open, during the business hours fixed by law, for search and examination by any person."

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Col. Hanford Thomas
Timothy B. Howard
County Clerk, Tompkins County
Supreme Court Clerk, Tompkins County