May 11, 2010



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, unless otherwise indicated.


            As you are aware, I have received your request for an advisory opinion concerning a denial of access to records that you requested from the Division of State Police.

            According to news articles that you have forwarded, Joshua A. Davies, a resident of Mexico, NY, was shot and killed by a state trooper, Paul Darmody-Latham, in August, 2009.  Those accounts indicate that the deceased “aggressively approached” the trooper’s vehicle with a knife, and that although the trooper repeatedly ordered Davies to drop the knife, Davies refused to do so.  Davies had an “extensive criminal history”, “conspiracy fixations”, and stated that “the cops are afraid of me now” in a video on the day that he died.  The incident was reviewed by a grand jury, which found that the trooper was justified in his actions, and he apparently was never the subject of a charge or allegation of wrongdoing, criminal or otherwise.

            You submitted a request pursuant to the Freedom of Information Law seeking “All state police reports on this incident, including witness statements and written statements of any police officer or other investigator.  Also, all audio or videotape evidence.”  In response, the Division’s records access officer denied access to the records in their entirety on the ground that disclosure would constitute an “unwarranted invasion of the personal privacy of those concerned.”  In your appeal, you specified that she did not indicate whose privacy was being protected and questioned why certain material could not be redacted.  The Division’s Administrative Director responded to the appeal and determined that the denial of access was proper and that “the privacy interests involved are those of the trooper.”  He added that it was his understanding that “the District Attorney presented this case to the Grand Jury, which ruled that the shooting was justified” and added that, “Accordingly, under section 160.50 of the Criminal Procedure Law, the papers are sealed and may not be made available to the public.”

            From my perspective, the Division’s reliance on §160.50 of the Criminal Procedure Law (CPL) is misplaced, and further, judicial precedent indicates that the ability to deny access to records relating to the duties of public employees is limited.  In this regard, I offer the following comments.

            First, the Freedom of Information Law pertains to all agency records [see definition of “record”, §86(4)] and 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 (k) of the Law.  It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow.  In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld.  That being so, I believe that it generally imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

            The Court of Appeals expressed its general view of the intent of the Freedom of Information Law in Gould stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]).  As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

            Second, in consideration of one of the grounds for denial referenced in the determination of your appeal, significant is the initial basis for withholding records, §87(2)(a), which pertains to records that “are specifically exempted from disclosure by state or federal statute.”  When a statute creates an exemption from disclosure concerning certain records, it has been held that those records are exempt in their entirety, and that there is no process of redaction or deletion of intimate or personal details.  As stated by the Court of Appeals in Short v. Board of Managers of Nassau County Medical Center, “The statutory authority to delete identifying details as a means to remove records from what would otherwise be an exception to disclosure mandated by the Freedom of Information Law extends only to records whose disclosure without deletion would constitute an unwarranted invasion of personal privacy, and does not extend to records excepted in consequence of specific exemption from disclosure by State or Federal statute” [57 NY2d 499, 401 (1982)].

            If §160.50 of the CPL was properly asserted, I would agree that certain records would be exempt from disclosure in their entirety.  Therefore, to ascertain whether rights conferred by the Freedom of Information Law are pertinent or applicable, the scope of and ability to assert §160.50 must be considered.

            That statute provides in subdivision (1) that “[u]pon the termination of a criminal action or proceeding against a person in favor of such person”, “the record of such action or proceeding shall be sealed”, and notification so indicating must be given by the clerk of the court in which the action or proceeding occurred.  Paragraph (c) of subdivision (1) involving the notification states that:

“all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency.”

            One issue concerns the meaning of the term “official.”  As suggested earlier, insofar as the order to seal involves “official records and papers”, those materials would be exempted from disclosure by statute, and the Freedom of Information Law would not apply.  However, insofar as the records maintained by or for the Department cannot be characterized as “official”, §160.50 of the CPL would not apply, and the provisions of the Freedom of Information Law would serve as the basis for determining the extent to which any such records must be disclosed.

            As noted by more than one court, the language of paragraph (c) is not entirely clear.  In Robinson Brog Leinwand Greene Genovese & Gluck, P.C. v. Catterson (Supreme Court, Suffolk County, NYLJ, August 13, 1997), the court stated that:

“The statute does not provide a definition of what constitutes ‘an official record or paper...relating to an arrest or prosecution’ and so courts have struggled to interpret this language in light of its legislative purpose to protect exonerated accused from discrimination in employment, education, and professional licensing flowing from a criminal prosecution.  Some guidance is provided by two Court of Appeals cases, each involving a tape conversation of an attorney which were part of a criminal proceeding and later sought by the Grievance Committee of the Bar.  In each case the tape conversation was key to the criminal proceeding and was later sought by the grievance committee which could and did result at least in the Matter of Dondi, 63 NY2d 331, 482 NYS2d 431, in the attorney being deprived of his profession, even though he had been acquitted. In each case the Court of Appeals found that the tape recording had been properly sealed and could not be unsealed (Matter of Hynes v. Karassik, supra; Matter of Dondi, supra).

“However, it is clear that the Court of Appeals agrees with the distinction of the First Department Appellate Division in the Matter of Hynes v. Karassik, 63 AD2d 597, 405 NYS2d 242 at p.243, that ‘a tape recording made in the course of an investigation does not become an official record required to be sealed under the section simply because it is marked in evidence as an exhibit in the course of a criminal trial.’  The Second Department Appellate Division applied this reasoning in the Matter of Anonymous, supra, finding that a tape recording of a statement suppressed during a criminal trial did not constitute the official record for purposes of CPL §160.50.  The Second Department granted the motion to unseal by finding that the record was not in fact sealed and so found it unnecessary to exercise the court’s inherent power to unseal.

“Generally investigative and audit reports are not records required to be sealed by the CPL §160.50 (People v. Neuman, 104 Misc2d 577).”

            In the last case cited by the court, it was stated that:

“...the court would find that the various records in question here, which the court understands largely consist of investigative and audit reports prepared by the office of the Special Prosecutor during the investigation and previous prosecution of defendants Lorette Neuman and Dr. Carl Neuman, do not constitute ‘official records and papers’ within the meaning of CPL 160.50 (subd 1, par [c]).  Here, the court would be guided by the distinction drawn in Matter of Hynes v Karassik (63 AD2d 597, aff’d 47 NY2d 659) wherein, in reversing the ruling of the trial court which had granted respondent’s motion to unseal, the First Department nevertheless made available to the Bar Association Grievance Committee certain tape recordings which had been made in the course of an investigation, and which had later been received into evidence in trial.  In so doing, the majority (KUPFERMAN, J., concurring and dissenting in part) made the following comment (at p 598): ‘it seems appropriate to express our understanding that a tape recording made in the course of an investigation does not become an official record required to be sealed under the section simply because it is marked in evidence as an exhibit in the course of a criminal trial.  On the other hand, it would seem clear that the indictment itself is such an official record.’ (Emphasis added.)” (People v. Neuman, 104 Misc.2d 324, 326).

            More recently, in a case in which a defendant against whom charges had been dismissed contended that he had a right to all files maintained by the district attorney pertaining to his case, claiming that they consisted of “official records” that must be unsealed pursuant to his request pursuant to paragraph (d) of §160.50(1) of the CPL, the Court of Appeals rejected that contention.  Rather, the Court determined that not all records pertaining to a criminal action or proceeding are “official” records, stating that:

“Such a conclusion is contradicted by the plain language of the statute which limits the accused’s access to all official records and papers, rather than permitting free access to any and all records and papers, without limitation.

“Moreover, although CPL 160.50 specifies judgments and orders of a court as items ‘included’ in the category of official [89 N.Y.2d 766] records and papers, the statute is otherwise silent on the nature of such ‘official’ materials (see, CPL 160.50[1][c]) further supporting the conclusion that bright line rules are not wholly appropriate in this area.  Indeed, such records and papers are not always subject to easy identification and may vary according to the circumstances of a particular case (Matter of Dondi, 63 N.Y.2d 331, 337, 482 N.Y.S.2d 431, 472 N.E.2d 281).

“Thus, in Matter of Dondi, we held that ‘on the facts of this case’ certain ‘testimonial evidence’ consisting of an incriminatory tape recording constituted an official record subject to CPL 160.50(1)(c) (id., at 337-338, 482 N.Y.S.2d 431, 472 N.E.2d 281).  However, in Matter of Hynes v. Karassik, 47 N.Y.2d 659, 661-662, 419 N.Y.S.2d 942, 393 N.E.2d 1015, we affirmed the Appellate Division’s determination that ‘two tape recordings introduced into evidence at the criminal trial were not within the definition of ‘official records and papers’ protected by the sealing statute [680 N.E.2d 605] *232 (CPL 160.50, subd 1, par [c]).’  Consequently, while some recordings may qualify as an official record under certain circumstances, not all tape recordings will qualify as an official record in every case” [Harper v. Angiolillo, 89 NY2d 761, 765-766 (1997)]

            In consideration of the decisions referenced above, it appears that “official records” and the capacity to seal involve those records “relating to the arrest or prosecution”, and do not necessarily include investigative materials.  If that is so, it would appear that many, if not all of the records sought would not be subject to sealing requirements imposed by §160.50 and would be subject to the Freedom of Information Law.

            In short, the statute upon which the Division relied to justify a denial of access, §160.50 of the Criminal Procedure Law, is, in my view, inapplicable and irrelevant.

            The other issue relating to §160.50 is whether it is applicable at all.  Based on information that you provided during our conversations, the trooper was never charged with any criminal offense, nor was he arrested or named in an accusatory instrument.  Subdivision (3) of §160.50 specifies a lengthy list of the nature of “criminal actions or proceedings” that are considered to be terminated in favor of a person, none of which apply in this case.  In short, the statute is inapplicable for two reasons: (a) there were no criminal charges files against the trooper, and, therefore, (2) no charge was terminated.

            I note that §190.85 of the CPL pertains to grand jury reports regarding the grand jury’s function as an investigator of “misconduct, non-feasance or neglect in public office by a public servant.”  If such a report exists, subdivision (3) would require that the report be “filed as a public record” thirty-one days after service on each public servant named therein, or subsequent to the resolution of an appeal.

            Assuming that the CPL does not serve as a basis for a denial of access, I believe that the Freedom of Information Law would govern.  As indicated earlier, in addition to the reference to §160.50 of the CPL, the determination of your appeal states that “the privacy interests involved are those of the trooper.”  In this regard, §87(2)(b) of the Freedom of Information Law authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.”  Additionally, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy.

            While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers and employees.  It is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those persons are required to be more accountable than others.  With regard to records relating to them, the courts have found that, as a general rule, records that are relevant to their duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, supra; Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to their duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov.  22, 1977].

            In my view, records that relate to a public employee and his or activities or actions relating to the performance of his/her duties would, according to judicial precedent, constitute a permissible, not an unwarranted invasion of the employee’s privacy.  The only elements of the records that might be properly withheld as an unwarranted invasion of personal privacy, and I am unaware of whether such records or perhaps portions of records exist, would involve intimate information, such as references to anxiety, shock, or similar medical or mental health related entries.

            It is emphasized, too, the Court of Appeals has held that “blanket exemptions for particular types of documents are inimical to FOIL’s policy of open government” [Gould v. New York City Police Department, 89 NY2d 267, 275 (1996)].  In this instance, the Division has denied access to the records at issue in their entirety.  As suggested at the outset, even if there are portions of the records that might justifiably be withheld and an agency may delete or redact them, it is required to disclose the remainder.  It appears that the Division has not engaged in that process as required by law, but rather has engaged in a blanket denial of access.

            In fairness to the Division, I note that a different exception to rights of access may be pertinent in analyzing rights of access.  Relevant may be §87(2)(g), which concerns internal communications between or among government officers or employees and which may permit a denial of access to portions of those records but require disclosure of others.  Specifically, the cited 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 Gould, supra, the Court of Appeals focused on that provision, and the decision states that:

"...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. Axelrod, 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" (id., 276-277).

            Based on the foregoing, an agency cannot claim that certain records or reports may be withheld in their entirety on the ground that they constitute intra-agency materials.

            In an effort to enhance understanding of and compliance with applicable law, and to attempt to avoid the need for costly and time consuming litigation, copies of this opinion will be forwarded to the Division.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: William J. Callahan
Captain Laurie Wagner