August 26, 1988

Mr. M. J. Dowden
(address deleted)

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff opinion is based solely upon the facts presented in your correspondence.

Dear Mr. Dowden

As you are aware, I have received your letter of August 12 and the correspondence attached to it. Please accept my apologies for the delay in response.

You have requested an advisory opinion concerning a denial of a request for a record of the Village of Brookville. Specifically, you wrote that the record in question is:

"a letter from the Mayor in which he complained of a spree of vandalism which involved L.I.U. students. The letter from L.I.U. mentions the name of a student who was arrested and the village mayor have mentioned this as grounds for the denial of access. The letter goes on to detail some of the terms of the Village of Brookville/L.I.U. relationship, including the payment in lieu of taxes made by L.I.U., the amount paid to the local police dept. for overtime costs, etc.".

You added that "this letter was read at a public meeting of the Village Board of Trustees," which you attended. Nevertheless, in response to your appeal, the Village Attorney, Robert D. Kops, denied the request, citing section 87 (2) (e) of the Freedom of Information Law.

In this regard, I offer the following comments.

First, as a general matter, the Freedom of Information Law is based on 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 of the grounds for denial appearing in section 87 (2) (a) through (i) of the Law. Further, the introductory language of section 87 (2) refers to the capacity to withhold "records or portions thereof" that fall within the scope of one or more of the grounds for denial that follow. The phrase quoted in the preceding sentence indicates that a single record might be available or deniable in whole or in part. That phrase, in my view, also imposes an obligation upon agency officials to review records sought in their entirety to determine which portions, if any, may justifiably be withheld.

Second, it is questionable, in my opinion, whether the provision upon which the Village relied to withhold the letter is relevant. Even if it is relevant, based upon the facts as you described them, I do not believe that it could appropriately be asserted. That provision, section 87 (2) (e), permits 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 relative to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures..."

It is unlikely in my opinion that a letter sent by an official of Long Island University to the Board of Trustees could be characterized as having been "compiled for law enforcement purposes." Even if that aspect of the letter pertaining to an arrest or perhaps an investigation could be considered as having been compiled for law enforcement purposes, I do not believe that the remainder, which deals with the relationship between the University and the Village. and their financial arrangements, could be so characterized. If section 87 (2) (e) is inapplicable, there would apparently be no basis for withholding.

Assuming that the letter, or portions of it, are considered to be records compiled for law enforcement purposes, the Village could withhold its contents only to the extent that disclosure would result in the harm described in subparagraphs (i) through (iv) of section 87 (2) (e). Since the letter was read at an open meeting during which any member of the public could have been present and, in fact, could have tape recorded the reading of the letter. [see Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD 2d 924 (1985)], I do not believe that disclosure of the letter would, at this juncture, interfere with an investigation, deprive a person of a right to a fair trial, identify a confidential source or reveal non-routine criminal investigative techniques or procedures. In short, if indeed the letter was read aloud at a public meeting, I do not believe that section 87 (2) (e), or any other ground for denial, could justifiably be asserted to withhold the letter.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.

Sincerely,
Robert J. Freeman
Executive Director

RJF:gc

cc: Robert D. Kops, Village Attorney
Board of Trustees, Village of Brookville