February 9, 2009

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, unless otherwise indicated.


            I have received your letter and hope that you will accept my apologies for the delay in response.  You have sought an advisory opinion relating to a denial of your request for records by the New York City Department of Investigation.

            By way of background, you wrote that you made three phone calls on March 12, 2007 to a named woman, and that you have a “word-for-word transcription of each of the three calls.”  Approximately two months later, a sergeant and two detectives from the Department came to your home and indicated that you are the subject of a criminal investigation because of the calls that you made.  Soon after, you requested a copy of the complaint that the person called made against you.  The request was denied by the records access officer, and your appeals was also denied.  In short, it was determined that disclosure “would constitute an unwarranted invasion of personal privacy [see Freedom of Information Law, §87(2)(b)] because they would reveal...the identities of witnesses and confidential information those witnesses provided.”  Additionally, it was contended that disclosure would “identify a confidential source or disclose confidential information relating to a criminal investigation” and that the record sought could be withheld under §87(2)(e)(iii) of the Freedom of Information Law.

            As I understand the matter, your request merely involves a complaint; it does not involve records that might have been prepared in relation to the complaint.  It is assumed that you properly identified the complainant as the person that you phoned.  Whether there were others present with the complainant when she received your calls is unknown.

            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 (j) of the Law.

            It is clear that you cannot invade your own privacy, and those portions of the complaint that describe or include information directly about you could not, in my opinion, be withheld.  Again, assuming that the complainant is the person that you called, her identity is known to you, and, therefore, I believe that the portion of the document confirming that she is the complainant must be disclosed to comply with law.  Insofar as the complaint includes intimate details regarding the complainant, i.e., information concerning her health or mental state, the impact of your calls on her well being, etc., those portions may in my view be withheld as an unwarranted invasion of her privacy.  If the complaint identifies persons other than yourself or the complainant, personally identifying details relating to those individuals may, in my opinion, be deleted to protect the privacy of those others.  Those portions of the complaint that may identify those others could also be withheld, in my opinion, on the ground that disclosure would identify persons who might be characterized as witnesses.   I believe that the remainder of the complaint must disclosed, for the Department could not, in my opinion, justify a denial of access.

            Second, the Court of Appeals, the state’s highest court, expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [89 NY2d 267 (1996)], 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).

          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.).

            In sum, the blanket denial of your request appears to be inconsistent with law, for I believe that portions of the complaint, and perhaps the complaint in its entirety, depending on its content in consideration of the preceding remarks, must be disclosed to comply with law.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Marjorie Landa
Elyse Hirschorn