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FOIL-AO-13697

November 12, 2002

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
I have received your letter in w hich you asked how your facility can be "properly required
to disclose videotapes through FOIL." You w rote that the tapes are recycled after fourteen days and
"facility staff are automatically denying all FOIL requests for video-recordings because by the time
an appeal is responded to it'll be past 14 days of the date of the video-recording."
In this regard, I point out that the Committee on Open Government is authorized to provide
advice concerning the Freedom of Information Law . The Committee is not empow ered to enforce
that statute or to compel an agency to grant or deny access to records. How ever, I offer the follow ing
comments.
The Freedom of Information Law provides direction concerning the time and manner in
w hich agencies must respond to requests. Specifically, ​8 9(3) of the Freedom of Information Law
states in part that:
"Each entity subject to the provisions of this article, w ithin five
business days of the receipt of a w ritten request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in w riting or furnish a w ritten
acknow ledgement of the receipt of such request and a statement of
the approximate date w hen such request w ill be granted or denied..."
If neither a response to a request nor an acknow ledgement of the receipt of a request is given w ithin
five business days, or if an agency delays responding for an unreasonable time after it acknow ledges
that a request has been received, a request may, in my opinion, be considered to have been
constructively denied [see DeCorse v. City of Buffalo, 239 AD2d 949, 950 (1997)]. In such a
circumstance, I believe that the denial may be appealed in accordance w ith ​8 9(4)(a) of the Freedom
of Information Law . That provision states in relevant part that:
"...any person denied access to a record may w ithin thirty days appeal
in w riting such denial to the head, chief executive, or governing body,
w ho shall w ithin ten business days of the receipt of such appeal fully
explain in w riting to the person requesting the record the reasons for
further denial, or provide access to the record sought."
In addition, it has been held that w hen an appeal is made but a determination is not rendered
w ithin ten business days of the receipt of the appeal as required under ​8 9(4)(a) of the Freedom of
Information Law , the appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil Practice Law and Rules
[Floyd v. McGuire, 87 AD2d 388, appeal dismissed 57 NY2d 774 (1982)].
I do not believe that an agency can destroy or dispose of a record that has been requested
pursuant to the Freedom of Information Law . The record must, in my view , be preserved during the
pendency of any request or appeal.
W ith respect to the videotapes, 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 w ithin one or more grounds for denial appearing in
​8 7(2)(a) through (i) of the Law .
From my perspective, tw o of the grounds for denial are pertinent to an analysis of rights of
access. The extent to w hich they may properly be asserted is, in my opinion, dependent on the nature
of the depictions on the videotapes.
Relevant are ​8 7(2)(b), w hich authorizes an agency to w ithhold records w hen disclosure
w ould constitute " an unw arranted invasion of personal privacy", and ​8 7(2)(f), w hich enables an
agency to w ithhold records to the extent that disclosure "w ould endanger the life or safety of any
person."
In a case involving a request for videotapes made under the Freedom of Information Law ,
it w as unanimously found by the Appellate Division that:
"...an inmate in a State correctional facility has no legitimate
expectation of privacy from any and all public portrayal of his person
in the facility...As Supreme Court noted, inmates are w ell aw are that
their movements are monitored by video recording in the institution.
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Moreover, respondents' regulations require disclosure to new s media
of an inmate's 'name *** city of previous residence, physical
description, commitment information, present facility in w hich
housed, departmental actions regarding confinement and release' (7
NYCRR 5.21 [a]). Visual depiction, alone, of an inmate's person in
a correctional facility hardly adds to such disclosure" [Buffalo
Broadcasting Company, Inc. v. NYS Department of Correctional
Services, 155 AD 2d 106, 111-112 (1990)].
Nevertheless, the Court stated that "portions of the tapes show ing inmates in states of undress,
engaged in acts of personal hygiene or being subjected to strip frisks" could be w ithheld as an
unw arranted invasion of personal privacy (id., 112), and that "[t]here may be additional portrayals
on the tapes of inmates in situations w hich w ould be otherw ise unduly degrading or humiliating,
disclosure of w hich 'w ould result in *** personal hardship to the subject party' (Public Officers Law
​ 89 [2] [b] [iv])" (id.). The court also found that some aspects of videotapes might be w ithheld on
the ground that disclosure w ould endanger the lives or safety of inmates or correctional staff under
​8 7(2)(f).
Further, in a case involving videotapes of events occurring at a correctional facility, in the
initial series of decisions relating to a request for videotapes of uprisings at a correctional facility,
it w as determined that a blanket denial of access w as inconsistent w ith law [Buffalo Broadcasting
Co. v. NYS Department of Correctional Services, 155 AD2d 106]. Follow ing the agency's review
of the videotapes and the making of a series of redactions, a second Appellate Division decision
affirmed the low er court's determination to disclose various portions of the tapes that depicted scenes
that could have been seen by the general inmate population. How ever, other portions, such as those
show ing "strip frisks" and the "security system sw itchboard", w ere found to have been properly
w ithheld on the grounds, respectively, that disclosure w ould constitute an unw arranted invasion of
personal privacy and endanger life and safety [see 174 AD2d 212 (1992)].
In sum, based on the language of the Freedom of Information Law and its judicial
interpretation, I believe that the Department is required to review each videotape falling w ithin the
scope of your request to attempt to ascertain the extent to w hich their contents fall w ithin the grounds
for denial appearing in the statute.
I hope that I have been of assistance.
Sincerely,

David Treacy
Assistant Director
DT:jm
FOIL-AO-f13697
13697
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