July 23, 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.


            I have received your letter and the materials relating to it.  The matter involves a request made to the Town of Waterford for “access to the police video supporting the claim that [you] failed to stop at a stop sign.”  The Town denied access, citing §87(2)(e)(i) of the Freedom of Information Law and contending that disclosure “would interfere with law enforcement investigations or judicial proceedings.”  You have sought an opinion concerning the propriety of the denial of your request by the Town.

            From my perspective, based on the language of the Freedom of Information Law and judicial precedent, the record in question must be disclosed to you.  In this regard, I offer the following comments.

            First, the Freedom of Information Law pertains to all agency records, and §86(4) defines the term “record” expansively to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

            In consideration of the definition, a video recording prepared by a Town employee constitutes a “record” that falls within the scope of the Freedom of Information Law.

            Second, as a general matter, that statute 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 provision upon which the Town relied to deny your request authorizes an agency to withhold records that are “compiled for law enforcement purposes”, insofar as disclosure would “interfere with law enforcement investigations or judicial proceedings”.  In consideration of the fact that the records relate to the alleged failure to stop at a stop sign, it is difficult to envision how disclosure of a video recording of the event could interfere with an investigation.  Very simply, unlike situations in which law enforcement investigations are ongoing or multi-faceted, or in which they may involve a number of individuals and events, this situation involved a brief period of time and a single event.  It is equally difficult to envision how disclosure could interfere with a judicial proceeding.

            It is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access.  As stated by the Court of Appeals, the state’s highest court, three decades ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2).  Thus, the agency does not have carte blanche to withhold any information it pleases.  Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908).  Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."

            In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

            Lastly, a recent judicial decision, Fusco v. Putnam County Sheriff’s Department (Supreme Court, Putnam County, September 2, 2008), dealt essentially with the same kind of situation.   In that case, the petitioner was stopped and ticketed “for allegedly passing a stop sign” and requested the video recording of the event.  The court rejected the agency’s contention that disclosure would “interfere with judicial proceedings”, found that the petitioner could not invade his own privacy, and that the information “is clearly Brady material” and that disclosure “will either exculpate Petitioner or convict him.”  In consideration of those realities, the court found that the agency could not meet its burden of defending the denial of access and ordered disclosure.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director

cc: Craig M. Crist
Darlene Dziarcak
Town Board