May 12, 2010


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.

Dear :

            As you are aware, I have received your letter, and I hope that you will accept my apologies for the delay in response.  You have sought an advisory opinion concerning a denial of a request for records by the Commission of Correction. 

            By way of background, you wrote that you represent an individual serving as administratrix of the estate of a person who, in your words, “wrongfully died at age 43, on March 11, 2006, as a result of insulin deprivation while in police custody for twenty four (24 hours, at Queens Central Booking and PSA-9 precinct on a minor trespass charge.”  You indicated that the Commission received copies of certain logs that include information concerning the location of the decedent, as well as the “supervisory checks made on the detainee” while he was in custody.  The Commission denied access to the records sought in their entirety, contending that:

“...such records contain specific information which reveals the security routine and procedure of officers stationed at various security posts.  As such, the Commission is of the position that public disclosure of such records may endanger the life or safety of staff and inmates.  Such a record is not therefore subject to FOIL subject to FOIL pursuant to Public Officers Law 87(2)(f).”

            In this regard, I 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 (k) of the Law.  It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow.  In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld.  That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

            The exception upon which the Commission relied as justification for its denial of access states that an agency may withhold records or portions of record when disclosure “could endanger the life or safety of any person.”  While it is possible that some elements of the records at issue might properly be withheld based on that provision, it is unlikely, in my view, that a denial of the records in their entirety may be justified.

            You likened the records sought to that required to maintained by county jails in accordance with §500-f of the Correction Law, which provides that:

"Each keeper shall keep a daily record, to be provided at the expense of the county, of the commitments and discharges of all prisoners delivered to his charge, which shall contain the date of entrance, name, offense, term of sentence, fine, age, sex, place of birth, color, social relations, education, secular and religious, for what any by whom committed, how and when discharged, trade or occupation, whether so employed when arrested, number of previous convictions.  The daily record shall be a public record, and shall be kept permanently in the office of the keeper."

            I would surmise that the logs of your interest include some of the information contained within the daily record maintained by county jails, such as the time of commitment and discharge, but that they also include different or additional information, such as the location within a facility where a particular individual is kept or incarcerated, as well as the location and times of “supervisory checks” by officers.

            With respect to the location of those in custody, there is precedent indicating that those records or portions of records are accessible pursuant to the Freedom of Information Law.  In Bensing v. LeFevre [506 NYS 2d 822 (1986)], an inmate in a special housing unit sought the names of others in that unit, and it was found in part that:  "There is no doubt that a list of names of inmates incarcerated in a particular institution should be readily available for inspection, and the Court can see no distinction in making available the actual Housing Unit within the Facility that an inmate has been placed" (id., 824).  It was also found that:  "Since the respondents have admitted that the information is probably already available to the petitioner's client by virtue of the fact that he was physically housed with the other inmates" (id.), a denial based upon §87(2)(f) could not be justified.  Based on Bensing, I do not believe that portions of the records indicating when and where the decedent was located within the facility may justifiably be withheld. 

            With regard to supervisory checks and the placement of officers, whether or the extent to which disclosure could endanger life or safety would, in my view, be dependent on particular facts and circumstances.  If officers are routinely seen at certain times or locations by those in custody, I do not believe that portions of records so indicating could properly be withheld.  On the other hand, if those in custody can be “checked” or seen without the knowledge of those in custody, and if it is reasonable to believe that disclosure could endanger the lives or safety of officers, those in custody or others, to that extent, §87(2)(f) might appropriately be cited as a basis for a denial of access.

            In short, it is possible in my view that portions of the records sought might justifiably be withheld, but that the remainder must be disclosed.  Further, as suggested at the outset, based on the language of the Freedom of Information Law and judicial precedent, it is the duty of an agency to review records sought, in their entirety, to determine which portions, if any, may properly be withheld.

            Lastly, as you are likely aware, the Court of Appeals has consistently interpreted the Freedom of Information Law in a manner that fosters broad public access.  The Court expressed its general view of the intent of the Freedom of Information Law and the obligations imposed upon agencies 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).

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Michael Donegan
Brian M. Callahan