October 29, 2013
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
We have received your correspondence pertaining to the application of the Freedom of Information Law to records relating to emergency 911 calls apparently made outside an E-911 system.
First, pertinent to the facts of this case, the Court of Appeals in Gould v. New York City Police Department [89 NY2d 267 (1996)] expressed its general view of the intent of the Freedom of Information Law, 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[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).
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, for it was 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:
"...to 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.).
Second the, statutory exemption concerning 911 calls made through an "enhanced" system, a so-called "E-911 system, in our view includes information offered orally by the caller, the phone number of the instrument used to make the call, and the location from which the call was made. Relevant in that circumstance is the first ground for denial, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §308(4) of the County Law, which states that:
"Records, in whatever form they may be kept, of calls made to a municipality's E911 system shall not be made available to or obtained by any entity or person, other than that municipality's public safety agency, another government agency or body, or a private entity or a person providing medical, ambulance or other emergency services, and shall not be utilized for any commercial purpose other than the provision of emergency services."
In our opinion, "records...of calls" means either a recording or a transcript of the communication between a person making a 911 emergency call, and the employee who receives the call. We do not believe that §308(4) can validly be construed to mean records relating to a 911 call. If that were so, innumerable police and fire reports, including arrest reports and police blotter entries, would be exempt from disclosure in their entirety. In short, a record of a call made outside the E-911 system cannot be construed to fall within the exemption created in §308(4) of the County Law.
Third, while it is possible that some elements of the records sought might justifiably be withheld, the expressed basis for the affirmance of the denial is, in our opinion, inadequate. In this regard, §89(4)(a) of the Freedom of Information Law pertains to the right to appeal a denial of access to records and requires that an agency's determination of an appeal must either grant access to the records or "fully explain in writing... the reasons for further denial." In this instance, the determination following your appeal merely repeated citations referenced in the initial denial of access and briefly added another. From our perspective, the response to the appeal could not be characterized as having "fully explained" the reasons for further denial. We note that the New York City Department of Investigation was criticized in Lewis v. Giuliani (Supreme Court, New York County, NYLJ, May 1, 1997) for a denial of access also based merely on a reiteration of the statutory language of an exception, stating that "DOI may not engage in mantra-like invocation of the personal privacy exemption in an effort to 'have carte blanche to withhold any information it pleases.'" In this instance, the unwarranted invasion of personal privacy exception appears to have been used in much the same manner.
Lastly, as you are aware, §87(2)(l) authorizes an agency to withhold records or portions of records when disclosure would constitute “an unwarranted invasion of personal privacy.” If the identity of the student alleged to have possessed a knife has been confirmed in media reports, it does not appear that the report at issue may properly be withheld. If, however, the name of that student, who is alleged to have possessed a knife, has not been publicly disclosed, we believe that his/her name or other identifying details may be redacted prior to disclosure of the remainder of the report.
The Freedom of Information Law does not distinguish applicants for records. If identifying details may be withheld from the public at large, the fact that you or your client may believe that you know the student’s identity would not result in the creation of a right of access.
On behalf of the Committee on Open Government, we hope that this is helpful.