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May 13, 1997

 

 

 

Mr. Silvio Reynoso
82-A-4739
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929

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 Mr. Reynoso:

I have received your letter of April 21 in which you sought
assistance in obtaining records under the Freedom of Information
Law.

As I understand the matter, at your trial fifteen years ago,
the assistant district attorney who prosecuted informed the court
that there were no written statements by an informant whose
identity is at this time known to you. Now the Bronx County Office
of the District Attorney has indicated that it has possession of
such statements but is denying access to them pursuant to
§87(2)(e)(i) and (iii) of the Freedom of Information Law. You have
asked how the statements in question can be "exempt from disclosure
-- when at trial the ADA who tried [your] case denied the existence
of [the] statements." In addition, you asked whether I could
recommend an attorney who might handle your case on a pro bono
basis and whether I might ask the District Attorney to investigate
your case.

In this regard, this office does not provide referrals to
attorneys, but it is suggested that you discuss the matter with a
representative of Prisoners' Legal Services. Perhaps that
organization can recommend attorneys to you.

With respect to access to the statements, the grounds for
denial offered by the Office of the District Attorney relate to the
ability to withhold records compiled for law enforcement purposes
to the extent that disclosure would, under subparagraph (i) of
§87(2)(e), "interfere with law enforcement investigations or
judicial proceedings" or, under subparagraph (iii), "identify a
confidential or disclose confidential information relating to a
criminal investigation."

Due to the passage of time, some fifteen years since your
trial, it is unlikely in my view that disclosure of the records in
question would interfere with any ongoing investigation or judicial
proceeding. If that is so, subparagraph (i) would not serve as a
proper basis for withholding. If you know the identity of the
informant who made the statements, that factor would likely
diminish the ability to assert subparagraph (iii) as a basis for a
denial of access. Nevertheless, without knowledge of the nature of
the statements or, for example, the extent to which information
contained in the statements was effectively disclosed at trial, I
could not advise with certainty as to the extent to which those
records might continue to be justifiably withheld.

In an effort to assist you, a copy of this response will be
forwarded to Peter Coddington, the person designated by the
District Attorney to determine appeals under the Freedom of
Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Peter Coddington