May 23, 1997

 

 

 

Mr. Gary S. Keegan
Assistant County Attorney
County of Albany
County Office Building
112 State Street
Albany, NY 12207

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 Mr. Keegan:

I have received your letter of May 6 in which you sought an
advisory opinion concerning the "feasibility and legality" of a
proposed cooperative effort on the part of several agencies to
"further their goal of ensuring community safety."

Specifically, you referred to the "Albany County J-FIRE
(Juvenile Fire Intervention, Response and Education) Committee",
which was created to "address the problem of juvenile firesetting"
throughout the County. According to your letter, the Committee
wants to maintain records concerning juveniles "suspected of fire-setting activity", particularly those who move from one community
in the County to another. The Committee would want to share the
records with the appropriate authorities in the new community "in
order to 'tip off' the fire department to keep a watchful eye
before a tragedy occurs." The intent, in addition, is to have the
ability to withhold those records from the public. The records in
question would not involve situations in which there may be or have
been arrests. You also questioned whether "anything [would]
preclude the various departments from compiling databases
concerning adults in the same manner as they would like to with
juveniles."

In this regard, I offer the following comments.

First, I am unaware of any provision of law that would
prohibit an agency from maintaining records pertaining to suspected
criminal activity, whether the suspected activity involves adults
or others.

Second, insofar as a database or documentation in another form
may be created and maintained, I believe that it would constitute
a "record" that falls within the coverage of the Freedom of
Information Law. As a general matter, that statute 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.

Despite the breadth of rights of access conferred by the
Freedom of Information Law, the kinds of records at issue could in
my opinion be withheld from the public pursuant to one and perhaps
two of the grounds for denial.

Section 87(2)(b) permits an agency to withhold records the
disclosure of which would constitute "an unwarranted invasion of
personal privacy." From my perspective, when a person is a suspect
or perhaps the subject of an unsubstantiated allegation, disclosure
of that person's identity would result in an unwarranted invasion
of personal privacy. In short, mere suspicion or an allegation
could not in my view be equated with a finding of guilt and would
not reflect any final determination pertaining to an individual's
action or conduct. In the case of juveniles, even when there is a
finding of guilt, the records pertaining to them are confidential
under the Family Court Act, §784 and, therefore, would be exempt
from disclosure under the Freedom of Information Law. Further, in
other contexts, it has been advised that personally identifying
details based on age may justifiably be withheld based on
considerations of privacy. For example, lists of senior citizens
who participate in a municipality's program for the aging or lists
of children who participate in a summer recreation program
indicate, by their nature, that certain people fall within small
age ranges. In those cases, since a class of persons would be
identified by means of age, it has been advised that disclosure
would result in an unwarranted invasion of privacy.

Also pertinent is §87(2)(e)(i), which permits an agency to
withhold records compiled for law enforcement purposes when
disclosure would "interfere with law enforcement investigations."
It is possible that the cited provision could appropriately be
asserted, particularly after fire-setting incidents have occurred
and those events are the subjects of investigations.

In short, I believe that agencies would have the authority to
withhold the names of suspects, whether the suspects are juveniles
or adults, for the reasons described in the preceding commentary.

Third, notwithstanding the ability to withhold the information
as issue from the public, neither the Freedom of Information Law
nor any other statute of which I am aware would prohibit agencies
from sharing or exchanging the information. Those kinds of
disclosures would not in my view be equivalent to the release of
records in response to requests made by members of the public; on
the contrary, they would be made to government officials acting in
the performance of their official duties.

Moreover, it is emphasized that the Freedom of Information Law
is permissive. While an agency may withhold records in accordance
with the grounds for denial appearing in §87(2), the Court of
Appeals has held that the agency is not obliged to do so and may
choose to disclose [Capital Newspapers v. Burns, 67 NY2d 562, 567
(1986). The only situations in which an agency could not disclose
would involve those instances in which a statute other than the
Freedom of Information Law prohibits disclosure. As you suggested
in your letter, one such situation would pertain to police records
relating to the arrest of a juvenile. As you are aware, those
records would be confidential pursuant to §784 of the Family Court
Act, and they could not be shared or exchanged between or among
agencies.

I hope that I have been of assistance. If you would like to
discuss the matter, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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