City of Kingston

City Hall 420 Broadway Kingston, New York 12401 Telephone (845) 331-0080 Extension 3947 Fax (845) 334-3959

Office of the Corporation Counsel

February 2, 2012 Paul Kirby Daily Freeman 79 Hurley Avenue Kingston, New York 12401 Re: Foil Appeal Dear Mr. Kirby:
I am in receipt of your appeal dated January 24, 2012 of the prior determination that certain records regarding Former Fire Chief Richard Salzmann are protected from disclosure pursuant to the provisions of Public Officer’s Law §87. The following constitutes my decision regarding your appeal. On January 24, 2012 a communication was submitted by e-mail transmission to John Tuey requesting “time sheets and vacation records of former Fire Chief Richard Salzmann for the years of 2009 – 2011”. On or about January 24, 2012, a response was sent to your office which denied the request on the grounds that the requested records are protected pursuant to Public Officer’s Law §87(2) (e)(i)(ii) which provides that an agency may deny access to records that have been “compiled for law enforcement purposes and which, if disclosed, would: interfere with law enforcement investigations or judicial proceedings [and would] deprive a person of a right to a fair trial or impartial adjudication”. It is well accepted that the intent of the Freedom of Information Law “is to shed light on government decision making, which in turn both permits the electorate to make informed choices regarding governmental activities and facilitates exposure of waste, negligence and abuse” (Matter of Encore v. SUNY, 87 N.Y.2d 410 (1995) (internal citations omitted)). The presumption of disclosure will be rebutted if the requested documents fall within one of the enumerated exceptions set forth in the Public Officers Law. The Public Officers law specifically exempts records which are compiled for law enforcement purposes. This exemption is founded on the principle that “[f]airness in law enforcement investigations and judicial proceedings is a fundamental principle of our democratic society” (New York Times v. City of New York Fire Department, 195 Misc.2d 119 (New York County Supreme Court, 2003)). The City of Kingston acknowledges that the Committee on Open government has found that the law enforcement exemption does not apply to records which are compiled in the ordinary course of business which later become relevant in an investigation or litigation (See, New York State Committee on Open Government, AO 11765; AO 11228). The City also acknowledges that the records were created

in the usual course of business of the City of Kingston prior to the commencement of the investigation regarding Mr.

-2Salzmann, and the records later became relevant in the investigation. It is the finding of this appeals officer that the aforementioned advisory opinions of the Committee on Open Government are inconsistent with binding case-law regarding the use of the term “compiled for law enforcement purposes”. This issue was specifically addressed by the New York County Supreme Court in New York Times v. City of New York Fire Department, supra., 195 Misc.2d 119, wherein the Court, citing to the United States Supreme Court in John Doe Agency v. John Doe Corp., 493 U.S.146, held that “‘compiled’ means the time when the reply to a FOIL request has to be performed, not when the documents are originally collected and assembled by the government agency . . . The important point in time as to ‘compiling’ of documents is not when they are created or initially received, but when they would be gathered for disclosure under FOIL. That is the time when their disclosure would have an effect on law enforcement investigations, judicial proceedings, or a person who is to be or is being tried”. No authority has been found to support the conclusions of the New York State Committee on Open Government in AO 11765 and AO 11228 regarding the use of the term “compiled”. In the New York Times v. Fire Department case cited above, a FOIL request was made for “[a]ll transcripts of interviews conducted by the department with members of the FDNY concerning the events of Sept. 11, 2001”. The initial FOIL request was denied, and an administrative appeal was also denied. The New York Times filed an Article 78 proceeding requesting a determination that the records were not protected. After determining that the records were “compiled” for law enforcement purposes, the Court determined that these “oral histories” were not protected. The Supreme Court held that “the allegation of depriving persons of a fair trial was only added in a totally conclusory fashion in the administrative appellate determination of the FOIL request”. The Court also found that the argument that the records are protected was only supported by a claim from the United States Attorney who stated that the records “are potential evidence in the guilt and penalty (if there is a conviction) phases of the trial”. In affirming the decision, the Court of Appeals explained that the records were not protected because the records were already in the possession of both the prosecution and the defense and “therefore their public disclosure would not give the equivalent of disclosure to either side in the criminal case”. In addition, the records at issue were not specifically related to the defendant but rather to the attacks in general (New York Times v. City of New York Fire Dept., 4 N.Y.3d 477) Clearly, for a litany of reasons, the circumstances involving Mr. Salzmann are not comparable to the circumstances surrounding Zacarias Moussaoui and the World Trade Center attacks and the records requested herein are not comparable to the records in the New York Times case. The information sought by the Daily Freeman is not in the possession of the possible defendant, it has not been widely disseminated, and it is not tangential to the ongoing investigation. Moreover, the City’s position that the requested records are protected pursuant to POL §87(2)(e)(i)(ii) was made clear in the initial response to the FOIL request rather than as an afterthought in this administrative appellate determination. It is beyond contest that the requested records have been compiled by law enforcement and forwarded to the Ulster County District Attorney for investigation. It is the opinion of the undersigned that release of the requested records would compromise the public’s right to a complete and fair investigation by the District Attorney. More importantly, such a release of information would compromise Mr. Salzmann’s absolute right to defend against any allegations raised against him. Moreover, if charges are filed, release would potentially compromise any potential jury pool.

-3Any determination of this appeal must be based upon a balancing of the governmental interests at issue. Upon balance, it is the opinion of this appeals officer that the governmental interest in protecting the investigative process and the rights of the individual under investigation, outweigh the public’s right to the requested information. Further discussion of these issues in this decision or speculation regarding how the requested information would compromise the ongoing investigation or possible defenses is not possible without revealing the very information that is protected. For the foregoing reasons, your appeal of the prior determination regarding your Freedom of Information request is hereby denied. Sincerely,

Daniel Gartenstein, Esq. cc: Robert Freeman, Esq., Committee on Open Government