June 16, 2008


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.


            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the Office of the Putnam County Sheriff.  Specifically, you requested and were denied access to a copy of a video tape recording of a deputy sheriff stopping your automobile and his issuance of a traffic ticket to you on March 29, 2008. 

            In response to your appeal, the Sheriff denied access on the grounds that “disclosure under FOIL of any video evidence in these circumstances would impede the proper conduct of judicial proceedings, while withholding such evidence – or even information about whether it even exists — would enhance the proper administration of the proceedings.  Accordingly, I find that the exemption set forth at POL §87(2)(e)(i) applies in this case.”  The Sheriff further indicated that “if law enforcement has a video recording showing a traffic infraction committed by a person, it would be an unwarranted invasion of that person’s privacy to publicly disclose the recording.”  We respectfully disagree with the opinion of the Sheriff, and offer the following comments.

            First, 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 (j) of the law.

            The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, 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)" [89 NY2d 267, 275 (1996)].

            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 different from those 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 v. 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.).

            The provision upon which the denial is based, §87(2)(e)(i), authorizes an agency to withhold records that “are compiled for law enforcement purposes and which, if disclosed, would...interfere with law enforcement investigations or judicial proceedings...”

            In the Appellate Division decision on which the Sheriff relies, Pittari v. Pirro, [258 AD2d 202 (2nd Dept, 1999)], it was stated that

 “[t]he question is whether the nature of the records sought and the timing of the FOIL request rendered those records exempt from disclosure under FOIL.  The Court of Appeals, in Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 572, 419 N.Y.S.2d 467, 393 N.E.2d 463 noted:

‘[T]he purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution’” (id., 169).

            The “timing” in this instance is clearly different from that in Pittari.  As I understand the matter, the defendant in that case sought records under the Freedom of Information Law prior to discovery, for the court found that “[i]f a criminal proceeding is pending, mandating FOIL disclosure would interfere with the orderly process of disclosure in the criminal proceeding set forth in CPL article 240" (id., 171).  In contrast, you have requested records in a legal proceeding for which no discovery rules apply.  Consequently, the harm sought to be avoided by the court in Pittari is not a consideration, and §87(2)(e)(i), in our opinion, cannot validly serve as a basis for a denial of access.

            The remaining case law on which the Sheriff relies in our opinion is not relevant.  They involve disclosure of records prior to the completion of the law enforcement investigation (DeLuca v. New York City Police Department, 689 NYS2D 487, 261 AD2d 140 [1999]), disclosure of records that were previously provided to a defendant in which the defendant failed to show that they were no longer available (Huston v. Turkel, 236 AD2d 283, 653 NYS2d 584 [1997]), and disclosure of records or information obtained from confidential witnesses (Hawkins v. Kurlander, 98 AD2D 14, 469 NYS2d 820 [1983]).

            Further, although this office has no jurisdiction over the interpretation of the Criminal Procedure Law, we note that the definition of “Brady material” in our copy of Black’s Law Dictionary (1990) indicates in part: 

Brady material” is exculpatory information, material to a defendant’s guilt or punishment, which government knew about but failed to disclose to defendant in time for trial.  Defendant is denied due process if government suppresses such material....”

            Accordingly, in our opinion, it is likely that your situation could be compared to that in which a person is charged with criminal behavior, in which the Sheriff would be required to disclose the video to you prior to trial so as to afford you due process of the law.

            Lastly, according to the Freedom of Information Law, an individual cannot engage in an unwarranted invasion of his or her own privacy.  Section 89(2)(c) of the Law states that, unless records can otherwise be withheld [i.e., pursuant to §87(2)(e)], "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy...ii.when the person to whom a record pertains consents in writing to disclosure; [or] iii. when upon presenting reasonable proof of identity, a person seeks access to records pertaining to him."  Therefore, an agency would not in our opinion have the ability to withhold any portion of the video pertaining to you on the ground that disclosure would result in an unwarranted invasion of personal privacy. 

            On behalf of the Committee on Open Government, we hope this is helpful of you.



                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director



cc: Donald B. Smith, Sheriff
Peter H. Convery, Undersheriff