December 29, 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 facts presented in your correspondence.


I have received your letter in which you sought guidance concerning rights of access to
records relating to your arrest in Kings County.

In this regard, first, pursuant to regulations promulgated by the Committee on Open
Government (21 NYCRR Part 1401), each agency is required to designate one or more persons as
"records access officer." The records access officer has the duty of coordinating an agency's
response to requests, and a request should ordinarily be directed to that person. Under the
circumstances, it is suggested that a request be made to the records access officer at the New York
City Police Department, Room 110C, One Police Plaza, New York, NY 10038.

Second, the Freedom of Information Law provides direction concerning the time and manner
in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in writing or furnish a written
acknowledgement of the receipt of such request and a statement of
the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within
five business days, or if an agency delays responding for an unreasonable time after it acknowledges
that a request has been received, a request may, in my opinion, be considered to have been
constructively denied. In such a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing body,
who shall within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the reasons for
further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered
within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v.
McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

Third, 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. Since I am unaware of the contents of the records in which you are interested or the effects of
their disclosure, I cannot offer specific guidance. Nevertheless, the following paragraphs will review
the provisions that may be significant in determining rights of access to the records in question.

In considering the records falling within the scope of your request, relevant is a decision by
the Court of Appeals concerning records prepared by police officers in which it was held that a
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,

i. interfere with law enforcement investigations or judicial

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.

Lastly, based on the decision rendered in Moore v. Santucci [151 AD2d 677 (1989)], if a
record was previously made available to you or your attorney, i.e., inconjunction with a criminal
proceeding, there must be a demonstration that neither you nor your attorney possesses the record
in order to successfully obtain a second copy. Specifically, the decision states that:

"...if the petitioner or his attorney previously received a copy of the
agency record pursuant to an alternative discovery device and
currently possesses the copy, a court may uphold an agency's denial
of the petitioner's request under the FOIL for a duplicate copy as
academic. However, the burden of proof rests with the agency to
demonstrate that the petitioner's specific requests are moot. The
respondent's burden would be satisfied upon proof that a copy of the
requested record was previously furnished to the petitioner or his
counsel in the absence of any allegation, in evidentiary form, that the
copy was no longer in existence. In the event the petitioner's request
for a copy of a specific record is not moot, the agency must furnish
another copy upon payment of the appropriate fee...unless the
requested record falls squarely within the ambit of 1 of the 8 statutory
exemptions" (id., 678).

I hope that I have been of assistance.



Robert J. Freeman
Executive Director