August 3, 1998

Mr. John Deknatel
92-A-4996
P.O. Box 2500
Marcy, NY 13403

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. Deknatel:

I have received your letter of July 17. You have asked that I prepare and forward
copies of an advisory opinion to two correctional facilities indicating that the records you seek
must be disclosed to you. The records sought include tape recordings of a Tier III
disciplinary hearing, a misbehavior report, certain forms, and "any and all documents held
within/under DOC's with regards to the 5/11/98 incident of misconduct."

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.

I would agree that a tape recording of a proceeding during which you were present
as well as any records introduced into evidence at the proceeding should be disclosed. In
short, none of the grounds for denial would, in my opinion, apply.

With respect to other records falling within your request, since I am unaware of their
contents, I cannot offer unequivocal guidance. Nevertheless, the following paragraphs will
review the provisions that may be significant in determining rights of access to the records in
question.

Potentially relevant is a decision by the Court of Appeals concerning records prepared
by police officers in which it was held that a blanket denial of access based on their
characterization as intra-agency materials would be inappropriate. The provision at issue,
§87(2)(g) of the Freedom of Information Law, enables 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.

In its analysis of the matter, it was determined that the agency could not claim that the
records can be withheld in their entirety on the ground that they constitute intra-agency
materials. However, the Court was careful to point out that other grounds for denial might
apply in consideration of those records. [Gould, Scott and DeFelice v. New York City Police
Department, 89 NY2d 267 (1996)].

For instance, of potential significance is §87(2)(b) of the Freedom of Information
Law, which permits an agency to withhold records or portions thereof when disclosure would
constitute "an unwarranted invasion of personal privacy". That provision might be applicable
relative to the deletion of identifying details in a variety of situations, i.e., where a record
identifies a confidential source, a witness, or others interviewed in an investigation.

Often the most relevant provision concerning access to records maintained by law
enforcement agencies is §87(2)(e), which 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."

In my view, the foregoing indicates that records compiled for law enforcement purposes can
only be withheld to the extent that disclosure would result in the harmful effects described in
sub- paragraphs (i) through (iv) of §87(2)(e).

Another possible ground for denial is §87(2)(f), which permits withholding to the
extent that disclosure "would endanger the life or safety of any person". The capacity to
withhold on that basis is dependent upon the facts and circumstances concerning an event.

As you requested, copies of this response will be sent to the facilities identified in your
letter.

I hope that the foregoing serves to enhance your understanding of the Freedom of
Information Law and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Superintendent, Franklin Correctional Facility
Superintendent, Mid-State Correctional Facility