From:    Freeman, Robert J (DOS)

Sent:      September 7, 2017



RE:                  Advisory Opinion

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, except as otherwise indicated.

I have received the material that you sent concerning your right to gain access to video footage from the Nassau County Correctional Facility.  The video, if it exists, pertains to the incarceration of your brother, Daryl David Woody, who committed suicide while in custody at the Facility.

In this regard, I offer the following comments.

First, the Freedom of Information Law (FOIL) includes all agency records within its coverage and defines the term “record” in §86(4) to mean “any information kept, held, filed, produced or reproduced by, with or for an agency…in any physical form whatsoever…”   Section 89(3)(a) states in part that “Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity…”  In consideration of the provisions referenced above, if the video at issue exists, it constitutes a “record” that falls within the coverage of FOIL.  If, however, it does not exist, FOIL would not apply.

Second, when an agency indicates that it does not maintain a record that has been requested or that it cannot locate a record, §89(3)(a) also states that, on request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.”

Third, when FOIL applies, that statute is based on a presumption of access.  Stated differently, all agency records must be disclosed, except those records or portions of records that fall within a series of exceptions to rights of access listed in §87(2) of the law.  In my opinion, although the video could, in my opinion, be withheld from the general public, assuming that you are the next of kin or executor of the estate of the deceased, I believe that you have the right to gain access to the record at issue.

The exception of significance pertains to the authority to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy” pursuant to §87(2)(b) of FOIL. Based on the direction offered by the Court of Appeals, the state’s highest court, the specific content of records and the effects of disclosure are the key factors in determining whether or the extent to which the exception concerning privacy might properly be asserted.

The Court of Appeals dealt with issues involving the privacy of the deceased and their surviving family members for the first time in New York Times Company v. City of New York Fire Department [4 NY3d 477 (2005)]. The records in question involved 911 tape recordings of persons who died during the attack on the World Trade Center on September 11, 2001, and the decision states that:

“We first reject the argument, advanced by the parties seeking disclosure here, that no privacy interest exists in the feelings and experiences of people no longer living. The privacy exception, it is argued, does not protect the dead, and their survivors cannot claim ‘privacy’ for experiences and feelings that are not their own. We think this argument contradicts the common understanding of the word ‘privacy’.”

“Almost everyone, surely, wants to keep from public view some aspects not only of his or her own life, but of the lives of loved ones who have died. It is normal to be appalled if intimate moments in the life of one’s deceased child, wife, husband or other close relative become publicly known, and an object of idle curiosity or a source of titillation. The desire to preserve the dignity of human existence even when life has passed is the sort of interest to which legal protection is given under the name of privacy. We thus hold that surviving relatives have an interest protected by FOIL in keeping private affairs of the dead (cf. Nat’l Archives and Records Admin. V. Favish, 541 US 157 [2004])” (id., 305).

Based on the foregoing, it is clear that there may be an interest in protecting privacy in consideration of the deceased, as well as family members. Nevertheless, the ensuing question involves the content of records, and whether the information is so intimate or personal that disclosure would result in an “unwarranted” invasion of privacy. As stated by the Court:

“The recognition that surviving relatives have a legally protected privacy interest, however, is only the beginning of the inquiry. We must decide whether disclosure of the tapes and transcripts of the 911 calls would injure that interest, or the comparable interest of people who called 911 and survived, and whether the injury to privacy would be ‘unwarranted’ within the meaning of FOIL’s exception” (id., 306).

In its focus on the nature of the calls, it was found that:

“The privacy interests in this case are compelling. The 911 calls at issue undoubtedly contain, in many cases, the words of people confronted, without warning, with the prospect of imminent death. Those words are likely to include expressions of the terror and agony the callers felt and of their deepest feelings about what their lives and their families meant to them. The grieving family of such a caller – or the caller, if he or she survived – might reasonably be deeply offended at the idea that these words could be heard on television or read in the New York Times.

“We do not imply that there is a privacy interest of comparable strength in all tapes and transcripts of calls made to 911. Two factors make the September 11 911 calls different.

“First, while some other 911 callers may be in as desperate straits as those who called on September 11, many are not. Secondly, the September 11 callers were part of an event that has received and will continue to receive enormous - - perhaps literally unequalled - - public attention. Many millions of people have reacted, and will react, to the callers’ fate with horrified fascination. Thus it is highly likely in this case - - more than in almost any other imaginable - - that, if the tapes and transcripts are made public, the will be replayed and republished endlessly, and that in some cases they will be exploited by media seeking to deliver sensational fare to their audience. This is the sort of invasion that the privacy exception exists to prevent” (id.).

As we view the direction offered by the Court of Appeals, the extent to which the contents of records are indeed intimate and personal is the key factor in ascertaining whether disclosure would result in an unwarranted invasion of personal privacy. From our perspective, the fact of a death is itself not intimate. However, to the extent that the records include information that “would ordinarily and reasonably be regarded as intimate, private information”, it has been held that disclosure would constitute an unwarranted invasion of personal privacy [see Hanig v. Department of Motor Vehicles, 79 NY2d 106, 112 (1992)].

In the context of the facts presented, I believe that the video footage may be withheld from the public on the ground that disclosure would result in an unwarranted invasion of the privacy of surviving family members.  However, you, as a family member, have a right to gain access to the footage if it continues to exist.  As the Court of Appeals in New York Times indicated:

“…the Fire Department does not challenge the lower courts’ rulings that the words of the eight relatives of the intervenors [members of the families of the deceased] be disclosed, and has assured us that it will honor similar requests made in the future by the families of other September 11 callers.  Surviving callers who want disclosure are also entitled it (Public Officers Law §89 [2][c][ii])” (New York Times, supra, 486).    

I hope that I have been of assistance.