Once again, the city of Schenectady is using questionable logic and unclear language in the state's Freedom of Information Law to keep a document away from a member of the public.
The latest incident involves a video shot on board a bus owned by Brown Transportation of an apparent assault in October involving kids outside the Central Park Middle School.
The video was turned over to Schenectady police for their investigation into the incident.
Since the assault, the mother of the victim has initiated legal action against the bus company, among others, and the company wants a copy of the video to use as part of its legal defense.
Sounds reasonable, right? The "driver's cam" video was privately shot by the bus company, from company property. The bus company is being sued. Maybe the tape might reveal something about the incident that could help the company defend itself in the lawsuit.
But city officials refuse to return the tape or provide a copy of it to the company, even after the company filed a Freedom of Information Law (FOIL) request.
Officials say that because the tape is part of a criminal case involving a juvenile, they can't release it without a judge's order.
In denying the company’s FOIL request, the city cited two exemptions in the law. One allows government to withhold records if releasing them would "constitute an unwarranted invasion of personal privacy.” The other allows information to be withheld if the records were "compiled for law enforcement purposes."
First off, how could anyone have an expectation of privacy for an incident that occurred in a public place? That argument just makes no sense. Anyone passing by could have witnessed the incident — and videotaped it.
The other exemption — about information compiled for law enforcement purposes — is an oldie but goodie used by officials before, specifically in The Gazette's request for building inspection records related to the March 2015 Jay Street fire.
The documents sought by the paper (and which we still haven't received) were public records already in the public domain at the time of the fire. But they were seized and sealed when the district attorney began his criminal investigation.
Just like the Jay Street inspection records, the bus company video wasn't prepared for law enforcement purposes. And it existed before the criminal investigation even began.
But because police "collected" the video for their investigation, the city said it had been "compiled" for law enforcement purposes and therefore was subject to withholding. While the definitions are close, they’re not the same thing.
Nor is it likely the FOIL law was designed to allow the police to grab anything and everything they wanted and then withhold it indefinitely under the guise of a criminal investigation.
In addition, the FOIL law states that the exemption is only in force when combined with other conditions. They are that disclosure would interfere with law enforcement investigations or judicial proceedings (How would releasing the video to bus company lawyers for use in a future civil trial do that?); deprive a person of a right to a fair trial or impartial adjudication (Same question.); identify a confidential source or disclose confidential information relating to a criminal investigation (Again, the assault happened in a public place.); or would reveal non-routine criminal investigative techniques or procedures (Like what?).
The failure to release the video to its rightful owner is just another example of public officials overreaching their authority to keep information from a member of the public.
If public officials are going to err, they should err on the side of disclosure, not the other way around.