FOIL AO 19783
By electronic mail only
November 18, 2020
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.
Dear Mr. Morris,
We are in receipt of your request for an advisory opinion dated November 14, 2020 regarding the manner in which the Nassau County District Attorney’s Office (the “Agency”) has responded to your Freedom of Information Law (FOIL) request for records of any complaints against particular law enforcement officers.
In response to your request, the Agency’s FOIL Appeals Officer concluded “that records in response to your request either do not exist or, if they did exist, their disclosure (even if they could be redacted) would constitute an unwarranted invasion of personal privacy within the ambit and meaning of the Public Officers Law or be in violation of a statute.” In addition, the Agency advised:
[D]ue the nature of your request, further specification would, itself, produce the sort of harm that the above-mentioned FOIL exemptions are designed to protect (e.g., an invasion of personal privacy). See generally AbdurRashid v. New York City Police Dept., 31 N.Y.3d at 230-31. That is, given the specific nature of your request (e.g., asking for complaint records in regard to certain, specifically named individuals), even acknowledging that a particular record exists (or exists to be redacted) violates the privacy protection of Public Officers Law 87(2)(b), and could also violate statutory exemptions such as the one mentioned above. As to a statement that no such records exists, Counsel Painter has explained why such a response also would violate the privacy interests that Public Officers Law 87(2)(b) is designed to protect.
In its response, the Agency has essentially adopted what is known under the federal Freedom of Information Act as a “Glomar” response, in which a federal law enforcement agency refuses to either confirm or deny the existence of records in response to a FOIA request. This is a type of response that has been engrafted onto the federal Freedom of Information Act and confirmed by federal courts and by the New York State Court of Appeals for use under very limited circumstances usually relating to national security, public safety, or when an indication of the existence of a law enforcement record would have a stigmatizing effect.
On many occasions, this office has advised that FOIL permits an agency to respond in only one of three ways to a request for records. Under FOIL, an agency can grant access to a record in whole or in part, deny access to a record in whole or in part, or indicate that the agency possesses no such record. However, the New York State Court of Appeals, in Abdur-Rashid v. New York City Police Dept., 31 N.Y.3d 217 (2018), affirmed that the use of the Glomar exception by New York law enforcement agencies was permitted “on the rationale that whether or not it is investigating a particular person or organization constitutes information that is itself statutorily exempt from disclosure.” The Court specifically narrowed its holding to very particular circumstances:
It is the rare case where, due to the surrounding circumstances and the manner in which a FOIL request is structured, acknowledging that any responsive records exist would, itself, reveal information tethered to a narrow exemption under FOIL. . . . [U]nder the circumstances presented here, where necessary to give full effect to the law enforcement and public safety statutory exemptions, the NYPD’s response neither confirming nor denying the existence of the investigative or surveillance records sought is compatible with FOIL and the policy underlying those exemptions, which is to provide the public access to records without compromising a core function of government – the investigation, prevention and prosecution of crime.
Id. at 233, 239 (emphasis added).
Here, the Agency has asserted that disclosure of the existence of complaints against its law enforcement officer would constitute an unwarranted invasion of personal privacy pursuant to § 87(2)(b) of FOIL. In our view and based on the discussion above, the New York courts would not permit an agency to assert a Glomar response merely to protect privacy. The Court in Abdur-Rashid appeared to limit the application of the Glomar response to circumstances not present here, such as when as the harm contemplated impacts “public safety” and the “investigation, prevention and prosecution of crime.” Accordingly, it is our opinion that in order to comply with the requirements of FOIL, the Agency must grant access to the records in whole or in part, deny access to the records in whole or in part, or indicate that it does not possess the records sought.
I hope this information proves useful.
cc: Andrea M. DiGregorio