October 27, 2003
I have received your letter of October 13, which reached this office on October 27.
You referred to a request for records of the New York City Police Department in which you were informed that 41 documents would be made available to you. However, it is your belief that 82 other known documents are "missing" and were withheld. Although you appealed what you consider to have been a denial of access to the Department's appeals officer, you had received no response as of the date of your letter to this office. Consequently, you appealed to the Committee on Open Government and requested an "index of all documents."
In this regard, the Committee is authorized to provide advice and opinions pertaining to the Freedom of Information Law. This office is not empowered to determine appeals or compel an agency to grant or deny access. Similarly, the Committee does not have custody or control of records.
If an agency has failed to respond to a proper appeal as required by §89(4)(a) of the Freedom of Information Law, the person seeking the records may consider such failure as a denial of the appeal and to have exhausted his or her administrative remedies. That being so, it has been held that he or she may seek judicial review of the denial by initiating a proceeding under Article 78 of the Civil Practice Law and Rules [see Floyd v. McGuire, 87 AD2d 388 (1982)].
Lastly, with respect to an index of documents within a file or index of those withheld, there is nothing in the Freedom of Information Law or judicial decision construing that statute that would require that a denial at the agency level identify every record withheld or include a description of the reason for withholding each document. Such a requirement has been imposed under the federal Freedom of Information Act, which may involve the preparation of a so-called "Vaughn index" [see Vaughn v. Rosen, 484 F.2D 820 (1973)]. Such an index provides an analysis of documents withheld by an agency as a means of justifying a denial and insuring that the burden of proof remains on the agency. Again, I am unaware of any decision involving the New York Freedom of Information Law that requires the preparation of a similar index.
Further, one decision suggests the preparation of that kind of analysis might in some instances subvert the purpose for which exemptions are claimed. In that decision, an inmate requested records referring to him as a member of organized crime or an escape risk. In affirming a denial by a lower court, the Appellate Division found that:
"All of these documents were inter-agency or intra-agency materials exempted under Public Officers Law section 87(2)(g) and some were materials the disclosure of which could endanger the lives or safety of certain individuals, and thus were exempted under Public Officers Law section 87(2)(f). The failure of the respondents and the Supreme Court, Westchester County, to disclose the underlying facts contained in these documents so as to establish that they did not fall 'squarely within the ambit of [the] statutory exemptions' (Matter of Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY 2d 75, 83; Matter of Fink v. Lefkowitz, 47 NY 2d 567, 571), did not constitute error. To make such disclosure would effectively subvert the purpose of these statutory exemptions which is to preserve the confidentiality of this information" [Nalo v. Sullivan, 125 AD 2d 311, 312 (1987)].
I hope that the foregoing serves to clarify your understanding of the Freedom of Information Law and that I have been of assistance.
Robert J. Freeman
cc: Leo Callaghan, Appeals Officer
Lt. Michael Pascucci