August 24, 2015
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.
I have received your letter and the correspondence relating to it. You have sought an advisory opinion on behalf of your client, The Journal News, concerning a denial of access to records by the Westchester County Department of Public Safety.
The request involved “all police reports, supplemental reports, witness statements in rough and final form and all audio and video recordings of statements in the Lacey Spears case, including statements made by Spears.” You wrote that Spears “was convicted earlier this year of second-degree murder in connection with the poisoning death of her 5-year-old son, and sentenced to 20 years to life in prison”, and her attorneys “have filed a notice of appeal.” The Commissioner of the Department denied the request “pursuant to §87(2)(e) of the Public Officers Law as the judicial proceeding (appeal) in this matter is ongoing at this time.” The ensuing appeal was denied in its entirety by the County Attorney, reiterating that disclosure would interfere with the appeal, citing Whitley v. New York County District Attorney’s Office [101 AD2d 455 (2012)].
In this regard, first, the Freedom of Information Law (FOIL) pertains to all agency records and defines the term “record” to mean “any information kept, held, filed, produced or reproduced by, with or for an agency…in any physical form whatsoever…” [§86(4)]. In consideration of the definition of “record”, FOIL includes notes, drafts, records characterized as “rough”, as well those deemed official or routine.
Second, because the responses to the request denied access to the records sought in their entirety, I stress that the Court of Appeals has specified that a “blanket” denial of access is inconsistent with law.
Most importantly, FOIL 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. 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 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 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:
"...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.).
In the context of your requests, the County 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 by County officials 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 sum, I believe that the blanket denial of your request indicates a failure to comply with law.
As suggested earlier, some elements of the records sought might properly be redacted. For example, the identities of witnesses or others named in reports might be redacted or deleted if they were not named during the trial or otherwise identified in records maintained by the court in which the proceeding was conducted. In that situation, it might be demonstrated that disclosure would constitute “an unwarranted invasion of personal privacy” [see §87(2)(b)]. I note, however, that insofar as witness statements or other records were introduced into evidence or are otherwise available from a court, it has been held that any such records “lose their cloak of confidentiality” and are accessible to the public when requested from an agency pursuant to FOIL [Moore v. Santucci, 151 AD2d 677,679 (1989)].
With specific respect to the precedents cited in the determination of the appeal, the decision rendered in Whitley offered virtually no rationale or factual basis for its conclusion that disclosure would interfere with a pending appeal; its determination was conclusory in nature.
That decision refers to two others, the first of which is Moreno v. New York County District Attorney’s Office [38 AD3d 358 (2007)]. In that case, the factors upon which the decision was based are dissimilar from those present in the Spears case. In Moreno, the court referred to a protective order that remained in effect to ensure the safety of DEA agents, informants and witnesses whose safety could be jeopardized by disclosure. A possibility of that nature does not appear to be present or relevant to the Spears case.
The other decision cited in Whitley is Lesher v. Hynes, in which the Court of Appeals specified that an agency cannot merely assert an exception to rights of access in generic form and prevail. On the contrary, the Court held that:
“A criminal prosecution is a ‘particular kind of enforcement proceeding’ where ‘disclosure of particular kinds of investigatory records while a case is pending would generally ‘interfere with enforcement proceedings.’….We emphasize that this not to mean that every document in a law enforcement agency’s criminal case file is automatically exempt from disclosure simply because kept there. The agency must identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents. Put slightly differently, the agency must still fulfill its burden under Public Officers Law §89 (4)( (b) to articulate a factual basis for the exemption” [19 NY3d 57, 67 (2012)].
The County in this instance has not identified the “generic kinds of documents” that it has protected, nor has it “articulated a factual basis” for its claim of an exemption. While I am not fully familiar with the Spears case, in consideration of the nature of the crime, the extensive nature of the information made public during her trial, the absence of any connection between Spears and others, such as those involved in drug dealing or organized crime, and because an appeal involves the law, not facts, it is difficult to envision how the County can justify its “blanket denial of access” or demonstrate how the pendency of an appeal could interfere with a judicial proceeding.
In an effort to encourage reconsideration of the County’s determination and obviate the need for litigation, a copy of this opinion will be sent to the County Attorney.
I hope that I have been of assistance.
Robert J. Freeman
cc: County Attorney