September 17, 1998



Mr. Scotty D. Huntington
P.O. Box 203
Whitehall, NY 12887-0203

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. Huntington:

I have received your letter of September 1, as well as the materials attached to it.

You have questioned the propriety of a denial of a request for videotapes showing the use of
"chemical agents" by the staff of the Department of Correctional Services "in cell extractions." The
Department denied your request, citing §87(2)(f) of the Freedom of Information Law. The
correspondence indicates that you are a correction officer and that you would like to use the tapes
in a grievance proceeding.

In this regard, I offer the following comments.

First, 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

Second, I note that your intended use of the records is irrelevant to your rights of access.
When records are accessible under the Freedom of Information Law, it has been found that they must
be made available to any person, notwithstanding one's status or interest [see Burke v. Yudelson, 368
NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman & Sons v. New York
City Health and Hosps. Corp., 62 NY 2d 75 (1984)]. Conversely, insofar as the records sought fall
within a ground for denial, I believe that they may be withheld, irrespective of the purpose of the

From my perspective, two of the grounds for denial are pertinent to an analysis of rights of
access. The extent to which they may properly be asserted is, in my opinion, dependent on the nature
of the depictions on the videotapes.

Relevant are §87(2)(b), which authorizes an agency to withhold records when disclosure
would constitute " an unwarranted invasion of personal privacy", and §87(2)(e)(ii), which enables an
agency to withhold records to the extent that disclosure "would endanger the life or safety of any

I note that the court of Appeals, the State's highest court, has stressed that the Freedom of
Information Law should be construed expansively. Most recently, in Gould v. New York City Police
Department [87 NY 2d 267 (1996)], the Court reiterated its general view of the intent of the Freedom
of Information Law, 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).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access
to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the
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), an
exception separate from that cited in response to your 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:

" 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 vl. Lefkowitz, supra, 47 N.Y.2d,
at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). 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 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74;
Matter of Farbman & Sons v. New York City Health & Hosps. Corp.,
supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In the context of your request, all of the videotapes that you requested have been withheld.
While I am not suggesting that they must be disclosed, based on the direction given by the Court of
Appeals, the records must be reviewed individually by the agency for the purpose of identifying those
portions 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, an agency may deny access records under an exception "as long as
the requisite particularized showing is made" (id., 277).

In a case involving a request for videotapes made under the Freedom of Information Law, it
was unanimously found by the Appellate Division that:

" inmate in a State correctional facility has no legitimate
expectation of privacy from any and all public portrayal of his person
in the facility...As Supreme Court noted, inmates are well aware that
their movements are monitored by video recording in the institution.
Moreover, respondents' regulations require disclosure to news media
of an inmate's 'name *** city of previous residence, physical
description, commitment information, present facility in which housed,
departmental actions regarding confinement and release' (7 NYCRR
5.21 [a]). Visual depiction, alone, of an inmate's person in a
correctional facility hardly adds to such disclosure" [Buffalo
Broadcasting Company, Inc. v. NYS Department of Correctional
Services, 155 AD 2d 106, 111-112 (1990)].

Nevertheless, the Court stated that "portions of the tapes showing inmates in states of undress,
engaged in acts of personal hygiene or being subjected to strip frisks" could be withheld as an
unwarranted invasion of personal privacy (id., 112), and that "[t]here may be additional portrayals
on the tapes of inmates in situations which would be otherwise unduly degrading or humiliating,
disclosure of which 'would result in *** personal hardship to the subject party' (Public Officers Law
§ 89 [2] [b] [iv])" (id.). The court also found that some aspects of videotapes might be withheld on
the ground that disclosure would endanger the lives or safety of inmates or correctional staff under

Further, in a case involving videotapes of events occurring at a correctional facility, in the
initial series of decisions relating to a request for videotapes of uprisings at a correctional facility, it
was determined that a blanket denial of access was inconsistent with law [Buffalo Broadcasting Co.
v. NYS Department of Correctional Services, 155 AD2d 106]. Following the agency's review of the
videotapes and the making of a series of redactions, a second Appellate Division decision affirmed
the lower court's determination to disclose various portions of the tapes that depicted scenes that
could have been seen by the general inmate population. However, other portions, such as those
showing "strip frisks" and the "security system switchboard", were found to have been properly
withheld on the grounds, respectively, that disclosure would constitute an unwarranted invasion of
personal privacy and endanger life and safety [see 174 AD2d 212 (1992)].

In sum, based on the language of the Freedom of Information Law and its judicial
interpretation, I believe that the Department is required to review each videotape falling within the
scope of your request to attempt to ascertain the extent to which their contents fall within the grounds
for denial appearing in the statute.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Anthony J. Annucci