November 7, 2014



FROM: Robert J. Freeman, Executive Director



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.


I have received your request for an advisory opinion, as well as a variety of related material, concerning denial of access to a copy of surveillance video by the New York City Department of Corrections that was sought by your client, Jake Pearson, a reporter for the Associated Press.

The video depicts “the alleged beating” of Robert Hinton, who was incarcerated at Rikers Island.  The event generated significant publicity and public interest and was the focus of a public report prepared by the United States Attorney for the Southern District of New York and a recommendation by a judge with the Office of Administrative Trials and Hearings (OATH) following a public hearing that six correction officers be terminated. 

Before consideration of the merits of the rationale for denying access, it is emphasized that the video requested by your client was played during a public proceeding. You informed me that members of the public, including an inmate advocate, attended the hearing. That alone, in my view, negates the validity of the denial of access by the Department.  That and other issues will be considered in the ensuing remarks. 

Perhaps most importantly, the Freedom of Information Law (FOIL) 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 (l) of the Law. The Court of Appeals expressed its general view of the intent of FOIL in Gould v. New York City Police Department [89 NY2d 267 (1996)], 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).

The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

" invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id.).

Notwithstanding my belief that the disclosure of the video during a public proceeding negates the ability to deny access, it is also my view that none of the exceptions to rights of access cited by the Department can be justified.

The initial ground for denial, §87(2)(a), pertains to records that “are specifically exempted from disclosure by state or federal statute.”  One such statute, §50-a of the Civil Rights Law, states that personnel records relating to correction officers that “are used to evaluate performance toward continued employment or promotion”are confidential.  In my view, and in consideration of the requirement that exceptions to rights of access be construed narrowly, not every record that includes reference to a correction officer can be characterized as a “personnel record”, and not every personnel record is used to evaluate performance.  If, for example, surveillance cameras are employed primarily to monitor the conduct and activities of inmates, the fact that a video recording includes images of employees of a correctional facility would not transform the video into a personnel record.  While a periodic evaluation of performance or an allegation submitted to the employer of a correction officer concerning possible misconduct historically and commonly are considered to constitute personnel records, a video recording in a correctional facility, particularly a surveillance video intended to capture inmate behavior, cannot, in my opinion, be deemed a personnel record that falls within the scope of §50-a.

In a related vein, it was contended that “disclosure of evidence in a trial or similar public forum does not preclude its withholding pursuant to a FOIL exemption”, citing McKenzie v. Seiden, 964 NYS 2d 702.  That decision dealt with §50-b of the Civil Rights Law, which prohibits the disclosure, in its entirety, of any record, including a court record, that would identify or tend to identify the victim of a sex offense.  The language of that statute differs from the language of §50-a and contains a significantly more stringent confidentiality requirement. Moreover, it has been determined that records that ordinarily may be withheld under FOIL lose their “cloak of confidentiality” once they have been “used in open court” [Moore v. Santucci, 151 AD2d 677,679 (1989)].  Similarly, in a decision that cited Moore concerning a videotaped confession, it was held that “The tapes were placed in the public domain when they were played in open court” (Rainbow News 12 v. District Attorney of Suffolk County, Supreme Court, Suffolk County, NYLJ, June 30, 1992).  There are numerous instances in which records that are exempted from disclosure by statute become public when used in an evidentiary manner in a judicial or administrative proceeding, e.g., tax records, records identifiable to students, autopsy reports,  medical records, etc., all of which are ordinarily confidential by statute.

The second exception cited by the Department, referenced as the “personal safety exemption”, §87(2)(f), authorizes an agency to deny access insofar as disclosure “could endanger the life or safety of any person.”  Again, the videotape was shown during a public administrative proceeding.  Although there may be legitimate concerns regarding safety depending upon circumstances, the response by the Department is conclusory and cannot, in my opinion, justify a denial of access. 

There is no suggestion in the response to the request that the video shows an area within the facility that is not seen by or familiar to inmates, the disclosure of which would adversely impact security within the facility.  Judicial precedent, on the other hand, dealing with video of areas that have or could have been seen by the general inmate population indicates that disclosure would not endanger life or safety [Buffalo Broadcasting Co. v NYS Department of Correctional Services, 174 AD2d 212, 216 (1992)].

The remaining exception cited by the Department, §87(2)(b), authorizes an agency to deny access insofar as disclosure would constitute “an unwarranted invasion of personal privacy.”  Its primary contention in relation to that provision appears to involve a contention that correction officers may be “recognizable.”  In this regard, first, assuming that the correction officers who are recognizable on the video are present and in view of the inmates on a routine basis, the fact that their faces or body structures can be seen again in my opinion would negate the ability to assert §87(2)(b) based on that contention.

Second and more importantly, in a case involving a request by the spouse of a convicted murderer for a photograph of an assistant county medical examiner who testified during the trial of her husband, the court determined that the conclusory contention that the photo was “inherently personal” was insufficient to deny access based on the exception concerning unwarranted invasions of personal privacy.  Although the court found that it is personal in nature, it was concluded that “it cannot be said that the photograph is not relevant to his or her employment” [Pennington v. Calabrese, 771 NYS2d 422, 4 AD3d 778 (2004)].

With respect to the privacy of inmates, as you pointed out in the appeal of the initial denial of access, it has been determined that those persons have no general expectation of privacy, and that records or portions of records pertaining to them may be withheld insofar as they display nudity (i.e., inmates showering) or other intimate details [see e.g., Buffalo Broadcasting Co., Inc. v. New York State Department of Correctional Services, 155 AD2d 106 (1990); Bensing v. LeFevre, 506 NYS2d 822(1986)].   As I understand its content, the video at issue does not include or depict the kind of intimate detail that would, if disclosed, constitute an unwarranted invasion of personal privacy.       

In sum, for the reasons expressed in the preceding commentary, I believe that the record sought must be disclosed to comply with FOIL.  In an effort to resolve the matter and avoid litigation, a copy of this opinion will be sent to Department officials.

I hope that I have been of assistance.