February 12, 2015
The staff of the Committee on Open government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the City of Syracuse. Specifically, you requested records regarding the disappearance of a woman 18 years ago, whose remains were recently brought up, along with her car, from the bottom of the Oswego River.
The City has denied your request, and your appeal, on the ground that disclosure of any or all of the City’s records were compiled for law enforcement purposes and would interfere with the City’s newly revived ongoing investigation.
This will confirm our opinion that a blanket denial of access is not necessarily permitted pursuant to judicial interpretation of the Freedom of Information Law. The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:
“To ensure maximum access to government documents, 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 NY2d 106, 109; see, Public Officers Law § 89  [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 NY2d 567, 571).” (89 NY2d 267, 275 ).
Just as significant, the Court in Gould repeatedly specified that a blanket denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the New York City Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that
they fall within the exception regarding intra-agency materials, §87(2)(g), one of the exceptions cited in response to your columnist’s request. The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (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:
“…to 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 NY2d, at 571). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 133; Matter of Farbman & Sons v New York City Health & Hosps. Corp., supra, 62 NY2d, at 83).” (Id.).
In the context of the request, the City engaged in a blanket denial of access in a manner which, in our view, is equally inappropriate. We are not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by that agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "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., 277; emphasis added).
To the extent that there is reliance on the Second Department’s decision in Pittari v. Pirro (258 AD2d 202, 696 NYS2d 167 [2nd Dept 1999]) for the principle that the records maintained by the City were compiled for law enforcement purposes, we do not disagree. We defer to the Court of Appeals determination in Gould, above, that requires an agency to disclose those portions of records that would not cause interference. See also, Loevy & Loevy, 46 Misc.3d 1214 (A), 2015 WL 389932 (New York County, January 21, 2015).
Finally, we note that there was a certain amount of information reported in the press at the time of the woman’s disappearance. In our opinion, at the very least, information published in the newspapers then and now, would not, if disclosed, interfere with a revived investigation.
We hope this is helpful.
Camille S. Jobin-Davis