January 21, 1993



Mr. Richard Schrader
Deputy Commissioner
New York City Department of Consumer Affairs
42 Broadway
New York, NY 10004

Dear Mr. Schrader:

Thank you for forwarding a copy of your determination of an appeal rendered under the Freedom of Information Law concerning a request by Mr. N. Richie Siegal.

As I understand your response to the appeal, you upheld a denial of access to a record indicating the "schedules of fines" assessed by your Adjudication division on the ground that disclosure would "interfere with both law enforcement and judicial proceedings." If I have correctly interpreted your determination, I respectfully disagree.

In this regard, I offer the following comments.

First, the language appearing in your response quoted above paraphrases a portion of §87(2)(e) of the Freedom of Information Law. That provision states that an agency may withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

(i) interfere with law enforcement investigations or judicial proceedings..."

It is questionable in my view whether a schedule of fines could be characterized as a record "compiled for law enforcement purposes". From my perspective, since such a schedule would not have been prepared with respect to any specific or individual case, but rather to cases generally that come before the Adjudication division, it likely constitutes a record prepared in the ordinary course of business rather than for a law enforcement purpose.

Second, even if the schedule could be characterized as having been compiled for law enforcement purposes, it is difficult to envision how disclosure would interfere with a law enforcement investigation. Any such investigation would have ended when a matter reaches the Adjudication division. Further, it is my understanding that the division conducts quasi-judicial proceedings, i.e., proceedings conducted by hearing officers, rather than judicial proceedings, i.e., those conducted by judges in courts.

More importantly, if your reasoning were to be extended by means of analogy to judicial proceedings, public court records reflective of penalties, fines or sentences imposed upon lawbreakers would be confidential. Similarly, sentencing guidelines would be beyond the scope of public access. Fortunately, in my view, those kinds of records must ordinarily be disclosed to the public. The only exceptions of which I am aware that might preclude public disclosure would involve records or proceedings pertaining to juveniles or persons adjudicated as youthful offenders.

In short, in my opinion, there would be no basis in the Freedom of Information Law for withholding a schedule of fines.

I hope that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.



Robert J. Freeman
Executive Director


cc: N. Richie Siegal