Opinion
January 23, 1987
Appeal from the Supreme Court, Erie County, Rath, J.
Present — Denman, J.P., Boomer, Pine, Balio and Lawton, JJ.
Judgment unanimously reversed, on the law, with costs, and petition granted. Memorandum: Special Term denied petitioner's application for access to tape recordings of certain communications broadcast over police radio, with leave to renew its application after the ongoing criminal prosecution is completed. Upon appeal, respondents have abandoned their contention that access to the recordings would "interfere with law enforcement investigations", and they rely solely upon their contention that the recordings are exempt from disclosure because they constitute intraagency material that is neither: (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) nor final agency policy or determinations (Public Officers Law § 87 [g] [i]-[iii]). Petitioner contends that respondents have not met their burden of showing that the recordings are exempt from disclosure. In support of its application at Special Term, petitioner submitted an affidavit of one of its reporters who swore that he had listened to some of the transmissions and heard a police officer asking the dispatcher to keep the media away from the crime scene, and that he later heard the dispatcher relaying this request to others. In their answer to the petition, respondents referred only to the provisions of the Public Officers Law containing exceptions from disclosure. They did not allege any facts showing whether the material sought came within the exceptions, nor did they request Special Term to make an in camera inspection (see, Church of Scientology v. State of New York, 46 N.Y.2d 906). Particularly, they failed to show that the material did not contain "instructions to staff that affect the public" (Public Officers Law § 87 [g] [ii]).
Because respondents failed to meet their burden of demonstrating that the requested material was exempt from disclosure, the petition must be granted (see, Matter of Farbman Sons v. New York City Health Hosps. Corp., 62 N.Y.2d 75; Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557). Respondents are directed to grant petitioner access to the tape recordings of the police broadcasts on September 13, 1986 relating to the investigation of the robbery at the Kentucky Fried Chicken Store on Abbott Road in Buffalo, New York, and to the arrest of the suspect.