July 23, 2014
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.
As you are aware, your former colleague, Matt Porter, requested an advisory opinion concerning “difficulties trying to request information about the shooting of an officer in the village of Johnson City, NY.”
In his description of the event, Mr. Porter wrote that:
“On March 31, James Clark, an employee of Southern Tier Imaging in Johnson City, approached the building wildly warning of a bomb being in the building. He ran at Johnson City Officer Dave Smith who responded to the call, somehow he managed to get Smith’s sidearm, shoot him, and fire other shots in the air before being gunned down by a second Johnson City Officer Louis Cioci…”
“Smith and Clark both died."
It is my understanding that Clark was the only person other than the officers involved in the incident and that he acted alone. A request for records relating to the incident was submitted in April by Mr. Porter, who was informed that the records would be withheld during the pendency of the investigation. On May 27, you submitted a second request for the same records, and it, too, was denied by the records access officer in a response of June 27. He wrote that the Village “must determine if the circumstance that barred release of those records have changed” and that “[a]s the circumstances from the original denial have not changed and the criminal matter is ongoing, this office must deny your request.” He indicated that “[u]nder Public Officers Law Section 87(2)(e), records can be withheld, which are compiled for law enforcement purposes and which, if disclosed, would:
- interfere with law enforcement investigations of judicial proceedings;
- deprive a person of a right to a fair trial or impartial adjudication;
- identify a confidential source or disclose confidential information relating to a criminal investigation; or
- reveal criminal investigative techniques or procedures, except routine techniques and procedures”.
Although the records access officer accurately presented the language of §87(2)(e) of the Freedom of Information Law (FOIL), in my opinion, the blanket denial of access is inconsistent with the direction found in judicial precedent, and most elements of that provision cannot justifiably be asserted. In this regard, I offer the following comments.
Most importantly, 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 (j) 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 Court of Appeals, the state’s highest court, expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 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[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. In that case, the Police Department contended that certain 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 separate from that referenced in response to your requests. 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 g, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).
In the context of your requests, the village has engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate. I am not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).
In short, I believe that the blanket denials of your requests indicate a failure to comply with law.
A review of the elements of §87(2)(e) in conjunction with the facts indicates that the wholesale denial of access by the Village is unsupportable.
The initial basis for denial in that provision, subparagraph (i), pertains to the ability to withhold when disclosure would “interfere with law enforcement investigations or judicial proceedings.” The facts suggest that the event was precipitated by the actions of one person, James Clark. Because he is deceased, the likelihood that disclosure would interfere with an investigation is minimal; clearly it is not a situation in which premature disclosure would enable Clark to leave the jurisdiction, for example, or otherwise compromise the progress of any ongoing investigation. Further, assuming that he acted alone, there is no possibility that disclosure would interfere with a judicial proceeding.
Subparagraph (ii) authorizes a denial of access when disclosure would “deprive a person of a right to a fair trial or impartial adjudication”. Again, if Clark was the only lawbreaker, that provision appears to be irrelevant, for there will be no trial or adjudication.
Subparagraph (iii) deals with disclosure that would “identify a confidential source or disclose confidential information relating to a criminal investigation.” It is possible if not likely that some of the records sought involve interviews of witnesses, family members, neighbors, co-workers, perhaps confidential sources and others. Depending on the content of those records, disclosure might constitute “an unwarranted invasion of personal privacy,” and to the extent that is so, portions of the records identifiable to those individuals may redacted to protect their privacy prior to disclosure of the remainder of the records.
Subparagraph (iv) deals with the revelation of other than routine criminal investigative techniques and procedures. Although the kind of incident to which the records relate may be unusual, it is questionable whether the investigative techniques and procedures employed by the Village Police Department could justifiably be withheld.
\With regard to reliance on §87(2)(e)(iv), the leading decision on the matter, Fink v. Lefkowitz [47 NY2d 567 (1979)], involved access to a manual prepared by a special prosecutor that investigated nursing homes in which the Court of Appeals held that:
"The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised the nonroutine procedures by which an agency obtains its information (see Frankel v. Securities & Exch. Comm., 460 F2d 813, 817, cert den 409 US 889). However beneficial its thrust, the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution.
"To be distinguished from agency records compiled for law enforcement purposes which illustrate investigative techniques, are those which articulate the agency's understanding of the rules and regulations it is empowered to enforce. Records drafted by the body charged with enforcement of a statute which merely clarify procedural or substantive law must be disclosed. Such information in the hands of the public does not impede effective law enforcement. On the contrary, such knowledge actually encourages voluntary compliance with the law by detailing the standards with which a person is expected to comply, thus allowing him to conform his conduct to those requirements (see Stokes v. Brennan, 476 F2d 699, 702; Hawkes v. Internal Revenue Serv., 467 F2d 787, 794-795; Davis, Administrative Law [1970 Supp], section 3A, p 114).
"Indicative, but not necessarily dispositive of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel (see Cox v. United States Dept. of Justice, 576 F2d 1302, 1307-1308; City of Concord v. Ambrose, 333 F Supp 958)."
In applying those criteria to specific portions of the manual, which was compiled for law enforcement purposes, the Court found that:
"Chapter V of the Special Prosecutor's Manual provides a graphic illustration of the confidential techniques used in a successful nursing home prosecution. None of those procedures are 'routine' in the sense of fingerprinting or ballistic tests (see Senate Report No. 93-1200, 93 Cong 2d Sess ). Rather, they constitute detailed, specialized methods of conducting an investigation into the activities of a specialized industry in which voluntary compliance with the law has been less then exemplary.
"Disclosure of the techniques enumerated in those pages would enable an operator to tailor his activities in such a way as to significantly diminish the likelihood of a successful prosecution. The information detailed on pages 481 and 482 of the manual, on the other hand, is merely a recitation of the obvious: that auditors should pay particular attention to requests by nursing homes for Medicaid reimbursement rate increases based upon projected increase in cost. As this is simply a routine technique that would be used in any audit, there is no reason why these pages should not be disclosed" (id. at 573).
As the Court of Appeals has suggested, to the extent that the records in question include descriptions of investigative techniques which if disclosed would enable potential lawbreakers to evade detection or endanger the lives or safety of law enforcement personnel or others [see also, Freedom of Information Law, §87(2)(f)], a denial of access would be appropriate. Again, however, only to the extent that the deleterious effects of disclosure described by the state’s highest court would arise by means of disclosure could subparagraph (iv) be asserted.
In sum, the exception cited by the Village likely is inapplicable with respect to the great majority of the content of the records at issue. In an effort to avoid the necessity of initiating litigation, resolve the matter, and to enhance understanding of and compliance with law, a copy of this response will be sent to Village officials.
I hope that I have been of assistance.
Robert J. Freeman