January 22, 1993
Ms. Susan R. Rosenberg
The City of New York
New York, N.Y. 10038
Dear Ms. Rosenberg:
I appreciate the routine receipt of determinations that you render following appeals made pursuant to the Freedom of Information Law.
In the case of a recent appeal made by Mr. Cornelius Mahoney, you upheld a denial of access to "complaint follow-up reports (DD5's) and enclosed a copy of the decision rendered in Scott v. Slade [577 NYS 2d 861,___Ad 2d___(1992)], which affirmed a decision upholding a denial of a request for a DD-5. While the decision might have been correct in that instance, another decision rendered by same court reached a different conclusion following an in camera inspection. In Mitchell v. Slade, it was found that:
"[t]he Motion Court, after reviewing the documents in camera, declined to dismiss the petition and held that respondent had failed to meet its burden of proving exemption for the redacted DD-5 follow up report. The Motion Court held that the exceptions contained in Public Officers Law §87(2) did not apply in this factual context, citing Cornell Univ. v. City of N.Y. Police Dept. (153 Ad 2d 515), and ordered production of the DD-5 with appropriate redaction. On this record, after a careful review of the documents produced to the Motion Court, we are satisfied that the materials are not exempt under the law enforcement exemption (Public Officers Law §87[e] or the intra-agency (Public Officers Law §87[g])" [173 Ad 2d 226, 227 (1991)].
From my perspective, based upon Mitchell, it would be inappropriate to engage in blanket denials of access to DD-5's in every instance in which they are requested. Rather, as suggested in that decision, the "factual context", the specific contents of the records, and the effects of their disclosure are the factors that must be considered in determining the extent to which those records may be withheld or, conversely, must be disclosed.
As you are aware, §87(2)(e) enables an agency to withhold records that:
"are compiled for law enforcement purposes and which, if disclosed, would:
i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."
In my view, the foregoing indicates that records compiled for law enforcement purposes can only be withheld to the extent that disclosure would result in the harmful effects described in sub- paragraphs (i) through (iv) of §87(2)(e).
The other basis for denial cited earlier, §87(2)(g), permits an agency to withhold records that:
"are inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or iv. external audits, including but not limited to audits performed by the comptroller and the federal government... "
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial applies. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
Again, I believe that the contents of the records and the effects of disclosure determine rights of access, and that blanket denials of requests of DD-5's would be inappropriate.
I hope that I have been of some assistance. If you would like to discuss the matter, please feel free to contact me.
Robert J. Freeman
cc: Cornelius A. Mahoney