March 3, 1997
Ms. Gay H. Williams
City of Oswego
Oswego City Hall
23 West Oneida Street
Oswego, NY 13126
Dear Ms. Williams:
I have received your letter of January 31 and appreciate receipt of your determination of an appeal rendered under the Freedom of Information Law.
The appeal involved a request for "records, dictaphone, dispatch or radio transmissions" relating to a traffic stop of a particular individual. In upholding the initial denial of the request, you wrote that:
"...the Freedom of Information Law does not require a municipality to create documents for response to FOIL requests. Dictaphone, dispatch and radio transmissions are not 'documents' which can be photocopied and turned over to you in response to your request. Rather they are tapes which would have to be transcribed in order to respond. The City is not required to transcribe every tape that is requested under the Freedom of Information Law."
I agree that the City is not obliged to create a record in response to a request and that it is not required to transcribe a tape recording. However, I believe that a tape recording is clearly a "record" that falls within the coverage of the Freedom of Information Law. While there may be no obligation to transcribe a tape recording, I believe that the public has the right to listen to or have a copy of a tape recording, unless there is a basis for denial appearing in §87(2) of the Freedom of Information Law. In this regard, I offer the following comments.
First, the Freedom of Information Law pertains to agency records, and §86(4) of that statute defines the term "record" expansively to include:
"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, a tape recording maintained by or produced for an agency would, in my opinion, clearly constitute a "record."
Second, 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 am unaware of the content of records that fall within the scope of the request. However, several of the grounds for denial might be relevant. For instance, §87(2)(e) permits an agency to withhold "records compiled for law enforcement purposes" under certain circumstances. The records might identify an individual or individuals, in which case §87(2)(b) could be relevant. That provision permits an agency to withhold records to the extent that disclosure would result in "an unwarranted invasion of personal privacy." Internal communications might, depending upon their contents, be withheld pursuant to §87(2)(g).
This is not to suggest that the aforementioned grounds for denial would justify a denial in this instance; rather, my intent is to suggest that there may be a basis for withholding. I point out, too, that there is a judicial decision in which the court, based upon the facts in that case, found that tape recordings of certain communications broadcast over police radio were available [Buffalo Broadcasting, Inc. v. City of Buffalo, 126 AD 2d 983 (1987)].
If you would like to discuss the matter, please feel free to contact me. I hope that I have been of assistance.
Robert J. Freeman
cc: William G. Dunsmoor