August 24, 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 attached to it.  You have sought an advisory opinion concerning a “blanket denial of access to every record related to an investigation, with no attempt to even redact existing records...”

            By way of background, the materials indicate that you are the assigned law guardian for a minor child, and that you requested records maintained by the Village of Watkins Glen Police Department relating to “a break-in or burglary” at the residence of the child.  You included a copy of the court order appointing you to serve as law guardian, and the Order states in part that “all individuals, institutions, educational facilities, medical care providers and others having information about these child(ren) shall release same to the Law Guardian upon presentation of a photocopy of this order without specific authorization by the child’s parent or guardian...”  Nevertheless, the request was denied in its entirety on the ground that the records pertain to an “ongoing investigation.”  You appealed the denial, and the Village Attorney wrote that the records sought “specifically relate to the ongoing investigation” and that “[t]here is reasonably no part of the records that you have requested which would not fall within the ambit of the applicable exception.”  For that reason, the appeal was denied.

            In this regard, I offer the following comments.

            First, I point out that the Freedom of Information Law is permissive.  Although an agency may withhold records in accordance with the exceptions to rights of access appearing in §87(2), the language of the law indicates and the Court of Appeals has held that there is no obligation to deny access [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].  Therefore, an agency, such as the Village, may choose to disclose, even though it may have the authority to deny access.

            In that vein, having been appointed law guardian by the court, I believe that your function is, in essence, to ensure that the best interests of a child are recognized and met, and the language of the Order, directing that those having information about the child “shall” release it to you is clear and unequivocal.  In consideration of the discretionary authority to disclose under the Freedom of Information Law and the absence of any statute that bars disclosure, the Order  might be viewed as overriding the exceptions in the Freedom of Information Law insofar as the records relate to or name the child.

            Second, notwithstanding the foregoing, as you indicated in your appeal, the Village engaged in a “blanket denial” of access, suggesting that nothing within the records sought is available under the Freedom of Information Law, and that the records may be withheld in their entirety pursuant to §87(2)(e)(i).  Because you included a copy of an advisory opinion rendered by this office in your appeal, FOIL-AO-16659, I do not believe that it is necessary to reiterate in detail the thrust of decisions in which the courts, including the Court of Appeals on several occasions, rejected agencies’ blanket denials of access.  While the Village Attorney distinguished “the facts of the case that generated the opinion”, presumably for the reason that the facts considered in the opinion involved a request following convictions, I do not believe that factor alters an agency’s obligation to review records relating to an ongoing investigation and to determine the extent to which the disclosure of records compiled for law enforcement purposes would, in the words of the exception, in fact “interfere with law enforcement investigations or judicial proceedings...”

            Information regarding ongoing investigations is routinely disclosed.  It is not unusual to read or hear reports of incidents relating to an unsolved crime that include the disclosure of the date and time that the crime occurred, the nature of  items that might have been stolen or damaged, the value of those items, the presence of residents at the time of the event, comments by family members, friends or neighbors, whether there were injuries, the manner in which a break-in may have occurred, whether doors and/or windows were open or locked, the number of perpetrators likely involved, whether there are suspects, etc.  In short, in most instances, there are some elements within records that relate to an ongoing investigation that would not, if disclosed, “interfere” with an investigation or judicial proceeding.

            Further, insofar as the records relate to the child whom you serve as law guardian, I would conjecture that disclosure to third parties might constitute “an unwarranted invasion of personal privacy, in which case, the Village could deny access in accordance with §87(2)(b) of the Freedom of Information Law.  However, as a  law guardian charged with serving the best interests of a child, and without any requirement to obtain parental permission regarding information pertaining to the child, I do not believe that it could be contended that disclosure to you would result in an unwarranted invasion of the privacy of the child.

            In an effort to encourage the Village to reconsider its blanket denial of your request, copies of this opinion will be forwarded to Village officials.

            I hope that I have been of assistance.



                                                                                               Robert J. Freeman
                                                                                               Executive Director


cc: Hon. Judith Phillips
David H. Ealy
Chief of Police