FOIL-AO-19188

From: Freeman, Robert J (DOS)
Sent: Tuesday, October 07, 2014 9:11 AM
To:
Cc:
Subject: RE: FOIL Question

Dear:

As we discussed, when a request is made pursuant to the Freedom of Information Law (FOIL) for
domestic incident reports, because their varies based on factual circumstances, rights of access may
differ from one situation to the next. However, when a request is made by a government agency that is
seeking the reports in the performance of its official duties, it has been suggested that the reports may
be shared in their entirety, with one exception. The exception involves situations in which a person is
charged with a criminal offense, and the charge is later dismissed. In that case, the records relating to
the event are supposed to be sealed pursuant to Criminal Procedure Law, §160.50.

FOIL is permissive; stated differently, FOIL permits an agency to withhold records or portions of records
in accordance with the grounds for denial of access appearing in §87(2), but it does not require that an
agency must withhold. Again, the only instance in which an agency must withhold would involve cases
in which a separate statute prohibits disclosure, as in the case of a dismissal of charges and the sealing
of records pursuant to §160.50.

To avoid the creation or appearance of a precedent concerning disclosure, it has been suggested that an
agency seeking records from another agency do so in writing, specifying that the records are being
requested in the performance of its official duties. The agency in receipt of the request, if it chooses to
honor the request, might respond in writing, expressing its belief that the records could be withheld in
whole or in part if sought pursuant to FOIL, but that they are being disclosed because the agency
seeking them is doing so in the performance of its official duties.

I hope that I have been of assistance.

FOIL-AO-f19188
19188