November 13, 2012

FROM:              Camille S. Jobin-Davis, Assistant Director

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear Mr.:

This is in response to your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the Town of Ramapo.  Specifically, you indicated that Mr. Nosson Rosen requested and was denied access to a copy of a video tape recording(s) of a police officer stopping his automobile, along with various violations issued to Mr. Rosen, which were later dismissed.  According to your description, the Town denied access to such records on the ground that disclosure would interfere with an ongoing investigation and/or that the materials are “investigatory files” and not accessible until after the matter has been tried by a court.

We respectfully disagree with the Town’s denial of access to such records, 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 (l) 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 our opinion, while release of a video recording of an automobile stop to the public could arguably cause interference with an investigation or a judicial proceeding, that argument is not tenable when the person making the request is the person depicted in the video. 

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 Mr. Rosen’s situation could be compared to that in which a person is charged with criminal behavior, in which the Police Department would be required to disclose the video to him prior to trial so as to afford him due process of law.

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

cc: Town of Ramapo Police, Records Access Officer