Office of the County Attorney
Christopher Gatto
County Attorney's Office
H.Lee Dennison Bldg.,
100 Veterans Memorial Highway,
P.O. Box 6100 Hauppauge, NY, 11788
Re: Request for 9-1-1, police/incident reports of event, witness statements, DD5's, and any/all supplemental reports on event, ME Report, any/all executed search and seizure warrants including list of items received
Law Appeal
Dear Mr. Gatto:
I hereby appeal the denial of access regarding my request, which was made on September 29, 2012 and sent to Janine Keleghan, Administrator I/F.O.I.L. Officer, Central Records Section via email.
The records that were denied include: calls to 9-1-1 for police responses on May 1st or 2nd of 2010 and any paperwork associated with these incidents. The Records Officer reasons denial is based on their assertion that "radio transmissions are available for audio duplication, however, calls into the enhanced 9-1-1 system are not available under the Freedom of Information Law (see New York State County Law Section 308(4)."
After further review of the above law regarding E 9-1-1 calls, a Committee on Open Government advisory opinion letter was located. The Petitioner in the attached case (
http://docs.dos.ny.gov/coog/ftext/f11629.htm) had requested 9-1-1 calls as well as police incident report or arrest record. The COOG advisory opinion letter states,
"First, 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.
"Second, assuming that a 911 call is made through an "enhanced" system, a so-called "E-911 system, the record of that call would be confidential. In an E-911 system, in addition to the information offered orally by the caller, the recipient of the call also receives the phone number of the instrument used to make the call and the location from which the call was made. Relevant in that circumstance is the first ground for denial, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §308(4) of the County Law, which states that:
"Records, in whatever form they may be kept, of calls made to
a municipality's E911 system shall not be made available to or
obtained by any entity or person, other than that municipality's
public safety agency, another government agency or body, or
a private entity or a person providing medical, ambulance or
other emergency services, and shall not be utilized for any
commercial purpose other than the provision of emergency
services."
"In my view, "records...of calls" means either a recording or a transcript of the communication between a person making a 911 emergency call, and the employee who receives the call. I do not believe that §308(4) can validly be construed to mean records regarding or relating to a 911 call. If that were so, innumerable police and fire reports, including arrest reports and police blotter entries, would be exempt from disclosure in their entirety.
"Third, the calls made by a dispatcher, for example, to a police officer following the receipt of a 911 call would not be subject to the County Law, but rather to the Freedom of Information Law, as would incident and arrest reports. With respect to those records, the issue in my view does not involve defining when a case is no longer under investigation; I know of no such definition. Often records or portions of records are available by law even though an investigation is ongoing; conversely, there may be records or portions thereof that may be withheld even though an investigation has ended. In short, an analysis of public rights of access or an agency's authority to deny access to records involves the content of the records and the effects of disclosure."
A second COOG advisory opinion was located (
http://docs.dos.ny.gov/coog/ftext/f14264.htm), again, regarding 9-1-1 calls relating to a F.O.I.L request that was subsequently denied. It states,
"The records involve 911 calls made by you and your neighbors with whom you share a duplex residence and related materials prepared following those calls. The Town denied access to some of the records on the basis of §308(4) of the County Law.
"A careful review of Article 6 of the County Law, which includes §308, indicates that §308 does not serve as a basis for a denial of access in this circumstance. That being so, I believe that the provisions of the Freedom of Information Law govern and must be used to determine rights of access, and conversely, the ability of the Town to deny access to the records sought.
"Subdivision (4) of §308 states that:
"Records, in whatever form they may be kept, of calls made to a municipality's E911 system shall not be made available to or obtained by any entity or person, other than that municipality's public safety agency, another government agency or body, or a private entity or a person providing medical, ambulance or other emergency services, and shall not be utilized for any commercial purpose other than the provision of emergency services."
"Although the term "municipality" most often would include a town, city or village, that is not so in this instance. Section 301 of the County Law contains a series of definitions for application in Article 6, and subdivision (1) defines "municipality" to mean "any county except a county wholly contained within a city and any city having a population of one million or more persons." That being so, §308(4) applies only to counties outside of New York City and does not apply to the Town.
"Again, since §308 does not apply, the Freedom of Information Law governs rights of access. In brief, that statute 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."
The following are cases regarding F.O.I.L. requests for audiotapes and 911 calls (
http://www.dos.ny.gov/coog/caselaw_foil.html):
Laporte v. Morgenthau, 11 AD3d 410, 783 NYS2d 571 (2004) - -
Affirmed order requiring disclosure of audiotapes, following redaction of witnesses identities pursuant to §87(2)(f).
New York Times Company v. City of New York Fire Department, 835 NYS2d 92, 39AD3d 414 (2007) - -
Some tapes of 911 calls made during attack on 911 include, by repetition, by 911 operators... identifying information provided by the caller. Court of Appeals in NY Times v. NY Fire Dept., previously held words of 911 callers be redacted, and that redaction of repeated information is consistent with the intent of the Court of Appeals.
Wooten v. New York City Police Department, Supreme Court, New York County, September 9, 2008 - -
Petitioner requested records relating to a complaint that he filed, including a 911 transcript of a call made by the manager of a store where petitioner was present, and a copy of the police report filed by two named officers. After numerous delays, petitioner was informed that 911 transcript is no longer maintained and was erased before receiving his request and that police report could not be found. Held that agency "failed to provide any statement certifying that the requested documents are not in its possession and control or that the documents could not be located after a thorough and diligent search, which would be sufficient to render petitioner's application moot", citing Rattley. Also held that agency offered no factual basis for claiming privacy exception concerning redactions made from police report and ordered disclosure of unredacted report.
There are numerous cases involving the disclosure of records under F.O.I.L. regarding the denial of police reports, incident reports, DD5's, witness statements, and supplemental reports on open and closed investigations. Listed are cases regarding F.O.I.L. requests on the above (
http://www.dos.ny.gov/coog/caselaw_foil.html):
Gould, Scott and DeFelice v. New York City Police Department, 653 NYS2d 54, 89 NY2d 267 (1996) --
Police department's complaint follow-up reports, "DD5's", were withheld in their entirety and Department claimed that police officers' memo books or activity logs were not agency records. Court of Appeals reversed and held that DD5's are subject to rights of access conferred by the Freedom of Information Law and that memo books are agency records. Agency required to review records in their entirety to determine which portions, if any, may justifiably be withheld. Additionally, the Court rejected suggestion that records are exempt because they are "nonfinal"; found that "factual data", a phrase it construed broadly, within such documentation must be disclosed.
Bly v. City of Yonkers, Supreme Court, Westchester County, March 17, 2009 - -
Involved request for records concerning 1952 murder of labor leader that "was never solved, and the murder investigation remains open." Request was denied "in its entirety" based on section 87(2)(e)(i), (ii), (iii) and (iv). Court emphasized an agency's responsibility to meet the burden of proof, stating that: "While there is precedent for delaying disclosure of police reports until the completion of a pending law enforcement investigation or prosecution of criminal charges, the Court finds that under the facts and circumstances of this case, Respondents have failed to articulate sufficient reasons why the requested documents are exempt from disclosure", citing Gould and rejecting a "blanket" denial of access. Respondents' "justification of the claim to exemption consists mostly of conclusory and generalized policy concerns." See also Markowitz regarding burden of proof.
Gould, Scott and DeFelice v. New York City Police Department, 653 NYS2d 54, 89 NY2d 267 (1996) --
Police department's complaint follow-up reports, "DD5's", were withheld in their entirety and Department claimed that police officers' memo books or activity logs were not agency records. Court of Appeals reversed and held that DD5's are subject to rights of access conferred by the Freedom of Information Law and that memo books are agency records. Agency required to review records in their entirety to determine which portions, if any, may justifiably be withheld. Additionally, the Court rejected suggestion that records are exempt because they are "nonfinal"; found that "factual data", a phrase it construed broadly, within such documentation must be disclosed.
Legal Aid Society v. New York City Police Department, Supreme Court, New York County, NYLJ, October 22, 1998 --
Citing Gould, reiterated that the Criminal Procedure Law does not preclude defendants from using FOIL and found that the Police Department "has consistently failed to adhere to its dictates." Denials of access did not refer to specific contents of records and agency staff apparently did not review records prior to denying access. Petitioner sought class certification because each applicant for records "receives the same denial", and court held that "this is one of those rare cases where the continued and obvious resistance on the part of government officials to follow the mandate of the law makes class certification appropriate." Agency in denying access must state "with factual particularity how and why" an exception applies; the rationale for delays in responding to requests must be "explicitly explained".
Bannon v. New York City Police Department, Supreme Court, New York County, September 8, 1997 --
Since agency did not make DD5's available for in camera inspection and the papers did not contain a detailed analysis of their contents, court granted the petition following redaction of information identifying witnesses; held that other aspects of the records, i.e., those involving investigative techniques, must be submitted for in camera review prior to withholding.
Blanche v. Winn and Constantine, Supreme Court, Cayuga County, September 17, 1990 --
Petitioner requested various records, many of which had been destroyed or were not maintained by respondent agencies, which were "under no duty to maintain these files, nor to reconstruct them..."; Court upheld denial of certain forensics reports under §87(2)(e)(iv), victim's phone under §87(2)(b) and certain items of clothing because they were not "records"; was granted access to police reports often redaction names and addresses of victim and victim's mother, an evidence inventory list, a victim's statement under Civil Rights Law, §50-b, as well as sperm samples be provided and State Police investigative report "which does not reveal non-routine investigative techniques which would aid anyone in detection", following deletion of identifying details.
In all cases, redaction of identifying details of caller information and witnesses can be accomplished before the release of the requested information.
The first (of 3) requested 9-1-1 calls was made by a woman who is deceased. Her identification is known, and the date and time and location of the call was included in the request. The names, date, time, and location of the other two calls were also included in the request. The content of the calls should be recorded digitally (see:
http://www.nytimes.com/2008/01/06/nyregion/nyregionspecial2/06colli.html). The Records Officer makes no attempt at specifying what, if anything, would interfere with law enforcement investigations or judicial proceedings if the records in request were disclosed. In a more recent case brought to the Appellate Court (Lesher v Hynes:
http://www.nycourts.gov/reporter/3dseries/2012/2012_02414.htm), clarification is given regarding what is and isn't considered interference with law enforcement or judicial proceedings in that,
"A criminal prosecution is a "particular kind[ ] of enforcement proceeding[ ]" where "disclosure of particular kinds of investigatory records while a case is pending would generally 'interfere with enforcement proceedings' " (Robbins, 437 US at 236). We emphasize that this does not mean that every document in a law enforcement agency's criminal case file is automatically exempt from disclosure simply because kept there. The agency must identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents. Put slightly differently,the agency must still fulfill its burden under Public Officers Law § 89 (4) (b) to articulate a factual basis for the exemption."
The requested information not included in the denial are: witness statements, ME Report, and any/all executed search and seizure warrants including list of items received.
As required by the Freedom of Information Law, the head or governing body of an agency, or whomever is designated to determine appeals, is required to respond within 10 business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.
In addition, please be advised that the Freedom of Information Law directs that all appeals and the determinations that follow be sent to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington Ave., Albany, New York 12231.
