March 20, 1995
Ms. Farida Burtis
40-66 Ithaca Street
Elmhurst, NY 11373
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 Ms. Burtis:
I have received your letter of February 15, as well as the correspondence attached to it. You have sought assistance in obtaining records from the New York City Police Department.
As I understand the matter, you made complaints to the Police Department beginning in 1991, and it is your belief that "the two year Statute of Limitations for prosecution...has expired." You requested the following materials:
"1) Correspondence that identifies the perpetrator. UN Security identified the perpetrator on the basis of its investigations.
2) Computer printouts of telephone calls.
3) Videotape of perpetrator making the calls to my home and UN numbers.
4) The information provided by the annoyance call bureau to the police on the basis of telephone 'traps.'"
In your request, you identified the detective familiar with the matter and complaint numbers. Having been denied access to some of the information sought, you appealed. The determination of the appeal, however, dealt with only one aspect of your request, that portion dealing with a surveillance videotape. You asked that I deal with each of the four categories of materials requested and denied.
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. From my perspective, several of the grounds for denial are relevant to an analysis of the matter. The extent to which they may properly be asserted would, in my opinion, be dependent on the nature and content of the records, and the effects of disclosure.
The initial question in my view is whether you, as the victim, have the right to know the identity of the alleged perpetrator. The provision in the Freedom of Information Law pertinent to the question, §87(2)(b), states that an agency may withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." I do not believe that the quoted phrase can be defined or that its application can be determined by means of rigid rules or standards. On the contrary, what is considered to be an unwarranted invasion of personal privacy often involves the making of judgments, some of which may be subjective, based upon attendant facts and circumstances, as well as societal values and morals. In my opinion, §87(2)(b) is sufficiently flexible that it can accommodate disparate facts or situations. Further, if there can be unwarranted invasions of personal privacy, there must also be permissible invasions of privacy.
I note that the Freedom of Information Law generally does not distinguish among applicants for records. It has been held that they must be made equally available to any person, without regard to one's status or interest [see e.g., Burke v. Yudelson, 51 AD 2d 673 (1976); Farbman v. New York City, 62 NY 2d 75 (1984)]. However, in some instances, records may be available under the Law only to the subject of the records. If, for example, a record pertains to a particular individual, it may be available to that person, but disclosure might constitute an unwarranted invasion of personal privacy if disclosed to others. As stated in §89(2)(c), unless a different ground for denial would apply, "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy...when upon presenting reasonable proof of identity, a person seeks records pertaining to him."
I am unaware of what or how much you know about the alleged perpetrator. If you have acquired information about that person, it might be contended, in view of the circumstances, that the additional disclosure of that person's identity would not constitute an unwarranted but rather a permissible invasion of privacy. It might also be contended that some of the records sought, or perhaps portions of them, pertain to you and that, therefore, you should enjoy a right of access. On the other hand, if the identity of the perpetrator is completely unknown, if you know little or nothing about that person, and if your complaints are merely unsubstantiated allegations, it could be argued that the identity of the individual could justifiably be withheld due to considerations of that person's privacy.
Also relevant is §87(2)(g). That provision permits 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.
Internal communications between or among officials of the Police Department would constitute "intra-agency" materials. However, it has been held that factual information, including that appearing in narrative form, as well as those portions appearing in numerical or tabular form, is available under §87(2)(g)(i). For instance, in Ingram v. Axelrod, the Appellate Division held that:
"Respondent, while admitting that the report contains factual data, contends that such data is so intertwined with subject analysis and opinion as to make the entire report exempt. After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 ('Chronology of Events' and 'Analysis of the Records') to be disclosable. These pages are clearly a 'collection of statements of objective information logically arranged and reflecting objective reality'. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance records, list of interviews) should be disclosed as 'factual data'. They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve to app den 48 NY2d 706). Respondents erroneously claim that an agency record necessarily is exempt if both factual data and opinion are intertwined in it; we have held that '[t]he mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion' (Matter of Polansky v Regan, 81 AD2d 102, 104; emphasis added). Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable" [90 AD 2d 568, 569 (1982)].
Similarly, the Court of Appeals, the State's highest court, has specified that the contents of intra-agency materials determine the extent to which they may be available or withheld, for it was held that:
"While the reports in principle may be exempt from disclosure, on this record - which contains only the barest description of them - we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for 'intra-agency materials,' as claimed by respondents. To the extent the reports contain 'statistical or factual tabulations or data' (Public Officers Law section 87[g][i], or other material subject to production, they should be redacted and made available to the appellant" (id. at 133).
In short, even though statistical or factual information may be "intertwined" with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted.
The remaining provision of significance, §87(2)(e), permits an agency to withhold records that:
"are compiled for law enforcement purposes and which, if disclosed, would:
i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."
The only aspect of §87(2)(e) quoted above upon which the Department relied to withhold the records sought is subparagraph (iv). In a recent decision, it was held that the purpose of §87(2)((e()(iv):
"is to prevent violators of the law from being apprised of nonroutine procedures by which law enforcement officials gather information (Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 572, 419 N.Y.S.2d 467, 393 N.E.2d 463). 'The Freedom of Information Law was not enacted to furnish the safecracker with the combination to the safe' (id., at 573, 419 N.Y.S.2d 467, 393 N.E.2d 463). 'Indicative, but not necessarily dispositive, of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by [law enforcement] personnel***' (id., at 572, 419 N.Y.S.2d 467, 393 N.E.2d 463 [citations omitted]). Even though a particular procedure may be 'time-tested', it may nevertheless be nonroutine (id., at 573, 419 N.Y.S.2d 467, 393 N.E. 2d 463). Likewise, a highly detailed step-by-step depiction of the investigatory process should be exempted from disclosure" [Spencer v. New York State Police, 591 NYS 2d 207, 209-210, 187 AD 919 (1992)].
Additionally, the Court found that:
"petitioner is not entitled to disclosure of portions of the file relating to the method by which respondent gathered information about petitioner and his accomplices from certain private businesses because the disclosure of such information would enable future violators of the law to tailor their conduct to avoid detection by law enforcement personnel" (id. 210).
Nevertheless, it was also held that "portions of the file describing [State Police] surveillance of places which petitioner was known to frequent and its establishment of roadblocks do not describe non-routine procedures" and that "lists of evidence seized from a crime scene are generally not exempt from disclosure" (id.). As I understand the situation, disclosure would not indicate the method of using or placement of audio or video surveillance equipment; rather the records sought represent the results of surveillance. Correspondence identifying the alleged perpetrator would apparently not independently reveal non-routine criminal investigative techniques or procedures. Further, it does not appear that computer printouts of telephone calls, videotapes of calls made and information acquired through the use of telephone "traps" would indicate with particularity how surveillance or the gathering of evidence occurred in a manner that would enable potential lawbreakers to evade detection. If my contentions are accurate, there may be little or no justification for withholding the records on the basis of §87(2)(e)(iv).
Lastly, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:
"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."
In another decision rendered by the Court of Appeals, it was held that:
"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].
Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:
"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).
I hope that I have been of some assistance.
Robert J. Freeman
cc: Janet Lennon, Deputy Commissioner
William Joseph, Esq.