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December 27, 1996

 

 

Mr. Michael W. Kilian
Metro Editor
Utica Observer-Dispatch
221 Oriskany Plaza
Utica, NY 13501

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. Kilian:

I have received your letter of November 25. Please accept my apologies for the delay in response. You have sought an advisory opinion concerning rights of access to records indicating the names of persons arrested by the City of Utica Police Department, as well as the names of complainants.

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 an arrest record, incident report or in some other manner, 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, 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 The Freedom of Information Law as originally enacted in 1974 required an applicant to seek "identifiable" records [see original Law, §88(6)].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 record by referring to a specific incident. Rather, an applicant could, in my opinion, request a record or records as they pertain to particular days or dates.

Third, 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 record might properly be denied, the remainder might nonetheless be available and would have to be disclosed.

From my perspective, unless an arrest or booking record has been sealed pursuant to §160.50 of the Criminal Procedure Law, it must be disclosed. Under that statute, when criminal charges have been dismissed in favor of an accused, the records relating to the arrest ordinarily are sealed. In those instances, the records would be exempted from disclosure by statute [see Freedom of Information Law, §87(2)(a)].

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, several 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)].

With respect to the names of complainants or victims, rights of access, or conversely, the ability to deny access, would in opinion be dependent on attendant facts. It is emphasized, however, that whether a complainant prefers to authorize or preclude disclosure is irrelevant. In a case in which a law enforcement agency permitted persons reporting incidents to indicate on a form their preference concerning the agency's disclosure of the incident to the news media, the Appellate Division found that, as a matter of law, the agency could not withhold the record based upon the "preference" of the person who reported the offense. Specifically, in Johnson Newspaper Corporation v. Call, Genesee County Sheriff, 115 AD 2d 335 (1985), it was found that:

"There is no question that the 'releasable copies' of reports of offenses prepared and maintained by the Genesee County Sheriff's office on the forms currently in use are governmental records under the provisions of the Freedom of Information Law (Public Officers Law art 6) subject, however, to the provisions establishing exemptions (see, Public Officers Law section 87[2]). We reject the contrary contention of respondents and declare that disclosure of a 'releasable copy' of an offense report may not be denied, as a matter of law, pursuant to Public Officers Law section 87(2)(b) as constituting an 'unwarranted invasion of personal privacy' solely because the person reporting the offense initials a box on the form indicating his preference that 'the incident not be released to the media, except for police investigative purposes or following arrest'."

Moreover, although the issue did not involve law enforcement, the Court of Appeals has held that a request for or a promise of confidentiality is all but meaningless; unless one or more of the grounds for denial appearing in the Freedom of Information Law may appropriately be asserted, the record sought must be made available [see Washington Post v. New York State Insurance Department, 61 NY 2d 557, 567 (1984)]. This is not to suggest that records or portions of records might not justifiably be withheld, but rather that a claim or promise of confidentiality in my opinion is irrelevant to an analysis of rights of access to records.

If a burglary occurs at a private home and police officers visit the premises, their presence, particularly when police vehicles are present or officers interview neighbors, the event becomes somewhat public, and I cannot envision how an agency could justify withholding the name or address of the resident. Further, if a crime is committed at a business establishment, there would likely be no issue involving personal privacy. In cases in which a series of burglaries occurs in a neighborhood, for example, police departments frequently encourage the dissemination of information in order that citizens can be more vigilant.

In some situations, a denial of access to the name of a complainant or victim may be appropriate. Under §50-b of the Civil Rights Law, police and other public officers are prohibited from disclosing the identity of the victim of a sex offense. If a complainant is in some way associated with organized crime or is a confidential source, that person's identity could likely be withheld under §87(2)(f). That provision permits an agency to withhold records to the extent that disclosure would "endanger the life or safety of any person." The same provision might apply when the victim of a burglary is a senior citizen who lives alone. However, in many instances, the name of a complainant involved in a crime must be disclosed, and a general policy of withholding names of complainants or victims would, in my opinion, be inconsistent with law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: David T. Ashe