August 4, 1994



Mr. Leonard Schleicher
Capital District Assoc.
  of Rental Property Owners
Box 1462
Troy, NY 12181

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.

Dear Mr. Schleicher:

Your correspondence of July 14 addressed to the Citizen Services Division of the Department of State has been forwarded to the Committee on Open Government. The Committee, a unit of the Department of State, is authorized to provide advice concerning the Freedom of Information Law.

By way of background and as I understand the situation, you directed a request to the City of Rensselaer in March. At that time, you were asked by the City's records access officer, Maureen Nardacci to complete a form that she enclosed and to direct all requests to her. On March 23, you sought "the address and the date of the property involved regarding the use or sale of illegal drugs", as well as "arrests made and/or search warrant issued." On April 29, you requested records indicating "the location and the date of any arrests made for illegal drugs or in a private residence." Both requests involved records relating to arrests made between January 1 of this year and the date of the requests. On May 16, Ms. Nardacci received a memorandum from the City's Office of Corporation Counsel stating that your request was denied "on the grounds that to release said information could imperil effective law enforcement if disclosed." A week later, you wrote to Mayor John F. Ryan and asked for the name of the person to whom you could appeal the denial of your request made under the Freedom of Information Law. The Mayor indicated that it is his understanding that an appeal should be made to the Citizen Services Division at the Department of State.

In this regard, I offer the following comments.

First, the provision dealing with the right to appeal a denial of access to records is found in §89(4)(a) of the Freedom of Information Law, which states in relevant part that:

"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

Further, the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), which govern the procedural aspects of the Law, state that:

"(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall hear appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.

(b) Denial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body established to hear appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer" (section 1401.7).

Based on the foregoing, in this instance, an appeal should be determined either by the Rensselaer City Council or a person or body designated by the Council.

It is also noted that the state's highest court has held that a failure to inform a person denied access to records of the right to appeal enables that person to seek judicial review of a denial. Citing the Committee's regulations and the Freedom of Information Law, the Court of Appeals in Barrett v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to advise petitioner of the availability of an administrative appeal in the office (see, 21 NYCRR 1401.7[b]) and failed to demonstrate in the proceeding that the procedures for such an appeal had, in fact, even been established (see, Public Officers Law [section] 87[1][b], he cannot be heard to complain that petitioner failed to exhaust his administrative remedies" [74 NY 2d 907, 909 (1989)].

Second, it is unlikely in my view that the basis for denial offered by City officials could be justified. As a general matter, the Freedom of Information Law 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 (i) of the Law.

From my perspective, unless arrest and related records have been sealed pursuant to §160.50 of the Criminal Procedure Law, it must be disclosed. Under that statute, when criminal charges have been dismissed in favor or an accused, the records relating to the arrest ordinarily are sealed. In those instances, the records would be exempted from disclosure by statute [see Freedom of Information Law, §87(2)(a)].

Although arrest records are not specifically mentioned in the current Freedom of Information Law, the original Law granted access to "police blotters and booking records" [see original Law, §88(1)(f)]. In my opinion, even though reference to those records is not made in the current statute, I believe that such records continue to be available, for the present law was clearly intended to broaden rather than restrict rights of access. Moreover, it was held by the state's highest court, the Court of Appeals, some ten years ago that, unless sealed under §160.50 of the Criminal Procedure Law, records of the arresting agency identifying those arrested must be disclosed [see Johnson Newspapers v. Stainkamp, 61 NY 2d 958 (1984)].

The provision that is usually most relevant to records of police departments is §87(2)(e), which enables an agency to withhold records:

"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."

As such, records compiled for law enforcement purposes, may be withheld only to the extent that the harmful effects of disclosure described in subparagraphs (i) through (iv) of §87(2)(e) would arrest. Names and locations of those arrested would not in my view result in those harmful effects of disclosure. An arrest generally involves a public event and relates to what may be a series of public judicial proceedings. While some records concerning the nature of an investigation, confidential sources and the like might properly be withheld, again, I do not believe that the City could justify a denial based on the reason offered in response to your request.

Lastly, in general, when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the use of the records, is ordinarily irrelevant.

The only exception to the principles described above involves the protection of personal privacy. By way of background, §87(2)(b) of the Freedom of Information Law permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Further, §89(2)(b) of the Law provides a series of examples of unwarranted invasions of personal privacy, one of which pertains to:

"sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes" [§89(2)(b)(iii)].

The provision quoted above represents what might be viewed as an internal conflict in the law. As indicated earlier, the status of an applicant or the purposes for which a request is made are irrelevant to rights of access, and an agency cannot inquire as to the intended use of records. However, due to the language of §89(2)(b)(iii), rights of access to a list of names and addresses, or equivalent records, may be contingent upon the purpose for which a request is made [see Federation of NYS Rifle and Pistol Clubs, Inc., v. New York City Police Department, 73 NY 2d 92 (1989); Scott, Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 NY 2d 294, 491 NYS 2d 289 (1985); Goodstein v. Shaw, 463 NYS 2d 162 (1983)].

In a case involving a list of names and addresses in which the agency inquired as to the purpose of which the list was requested, it was found that an agency could make such an inquiry. Specifically, in Golbert v. Suffolk County Department of Consumer Affairs (Supreme Court, Suffolk County, September 5, 1980), the Court cited and apparently relied upon an opinion rendered by this office in which it was advised that an agency may appropriately require that an applicant for a list of names and addresses provide an indication of the purpose for which a list is sought.

In a decision cited earlier, Federation of NYS Rifle and Pistol Clubs, a not-for-profit corporation sought a list of names and addresses in order to send its circular, which included a statement of membership rates and a membership application. In that decision, the Court of Appeals held that membership solicitation constituted a fund-raising purpose and upheld the agency's denial on that basis.

A copy of the description material that you enclosed includes a membership application. which can be mailed with or without a check. Based on Federation, in view of the membership solicitation, if your request involves a list of names and addresses or equivalent information, it appears that it could be denied on the basis of §89(2)(b)(iii). I point out, however, that the Court of Appeals has also held that the Freedom of Information Law is permissive. In other words, even though it may have the authority to withhold records under the Freedom of Information Law, it has no obligation to do so [see Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director

cc: Hon. John F. Ryan, Mayor
Maureen G. Nardacci, Freedom of Information Officer