July 26, 2000


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


As you are aware, I have received your letter of June 26 and a variety of materials
pertaining to your attempts to gain access to records from the Division of State Police. The
records sought relate to a speeding ticket issued to you on October 23, 1999 and a trial
scheduled for February 1 of this year, at which time the case against you was dismissed.

You have raised a series of questions concerning matter, and in this regard, I offer the
following comments.

First, I believe that your requests for records were made in conformity with the
Freedom of Information Law. In view of their specificity, in my opinion, they met the
requirement imposed by §89(3) that they "reasonably describe" the records sought.

Second, notwithstanding the dismissal, in a response to your request rendered by the
Division on February 16, you were informed that the records sought would be withheld, for
"the case is still pending court adjudication" and "were compiled for law enforcement
purposes and which, if disclosed, would interfere with judicial proceedings. I agree with
your contention that learning of the status of your case could likely have been readily
accomplished, and that an inappropriate denial of access could have been avoided.

In brief, as you may be aware, 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. While §87(2)(e)(i) permits an agency to
withhold records compiled for law enforcement purposes insofar as disclosure would
"interfere with law enforcement investigations or judicial proceedings", the authority to deny
access pursuant to that provision is, in my view, limited to those situations in which the harm
envisioned by its language would indeed arise by means of disclosure. In the circumstance
that you presented, since the case was dismissed, there appears to have been no possibility
that disclosure would have interfered with an investigation or a judicial proceeding. Even if
the matter had not been dismissed, it is questionable whether or how disclosure of the records
sought could have "interfered" in a case involving a speeding ticket. If no "investigation"
occurred following the issuance of the ticket, if no witnesses were to be called, if the case
was typical of those involving speeding tickets, it is unlikely in my view that a denial of
access could have been justified.

I note that the Court of Appeals 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:

"...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 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.).

Again, demonstrating that the disclosure of records relating to a speeding ticket would
interfere with an investigation or a judicial proceeding or endanger life or safety would, in
my opinion, be difficult if not impossible in most circumstances.

Additionally, although the courts are not subject to the Freedom of Information Law,
court records are generally available pursuant to other statutes. In this instance, I believe that
many of the records sought would have been available from the court in accordance with
§2019-a of the Uniform Justice Court Act. To the extent that the records would be have been
available from the court, I believe that the ability of the Division of State Police to deny
access to the same records would have been eliminated.

Third, following a response indicating that records could not be found, you requested
a certification to that effect pursuant to §89(3), and Lt. Laurie M. Wagner wrote that "the
Division of State Police certifies that, after a diligent search, it either does not have
possession of the records you requested or that such records can not be found." Based on
judicial decisions, unless Lt. Wagner personally made the search, the certification was
inadequate. As you are aware, when an agency indicates that it does not maintain or cannot
locate a record, an applicant for the record may seek a certification to that effect, for §89(3)
provides in part that, in such a situation, on request, an agency "shall certify that it does not
have possession of such record or that such record cannot be found after diligent search."

In Key v. Hynes [613 NYS 2d 926, 205 AD 2d 779 (1994)], it was found that a court
could not validly accept conclusory allegations as a substitute for proof that an agency could
not locate a record after having made a "diligent search". However, in another decision, such
an allegation was found to be sufficient when "the employee who conducted the actual search
for the documents in question submitted an affidavit which provided an adequate basis upon
which to conclude that a 'diligent search' for the documents had been made" [Thomas v.
Records Access Officer, 613 NYS 2d 929, 205 AD 2d 786 (1994)]. More recently, in a
situation that may have been somewhat similar to that presented here, the court wrote that:

"Although respondent provided access to some of the records
petitioner originally requested under the Freedom of
Information Law ["FOIL"], Public Officers Law § 84 et seq.),
respondent's form letter to petitioner dated June 12, 1998
alleged that it was unable to locate several others. These
records were not subsequently produced and their non-
production was never addressed with the requisite certification
as to the performance of an extensive, diligent search (see,
Public Officers Law § 89[3]; Qayyum v. NYPD, 227 A.D.2d
188, 642 N.Y.S.2d 28). Therefore, petitioner's claims remain
viable. The counsel's affirmation and the above-mentioned
form letter, submitted by respondent in support of its claim that
a diligent search had been made for the requested records, were
an insufficient basis for the motion court to determine, without
a hearing, whether respondent had in fact conducted a diligent
search. The affirmation was made without any apparent direct
knowledge of the alleged search effort (see, Key v. Hynes, 205
A.D.2d 779, 781, 613 N.Y.S.2d 926), and both submissions
lacked the requisite detail required under the circumstances to
constitute a sufficient basis for the court's determination (Id.)"
[Rattley v. New York City Police Department, 706 NYS2d 26,

Lastly, because the Committee on Open Government is not a court and I am not a
judge, I cannot appropriately comment on or effectively gauge whether the Division acted in
"bad faith."

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: William Callahan
Lt. Laurie M. Wagner