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July 9, 1997

 

 

 

Mr. Jim Parker
Box 172
Ilion, NY 13357

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. Parker:

I have received your letter of May 28, which reached this
office on June 9.

By way of background, you wrote that a few years ago, a member
of the Herkimer Police Department was indicted, and that several
individuals were charged and prosecuted. Following the
proceedings, the judge determined that the grand jury report should
be made public. However, your requests for information pertaining
to the report have been denied on the basis of §190.90(4) of the
Criminal Procedure Law. It is your understanding that the cited
provision requires that the report remain sealed until appeals have
been decided. You have questioned your right to obtain the
information.

In this regard, I offer the following comments.

First, the Freedom of Information Law, the statute within the
advisory jurisdiction of the Committee on Open Government,
specifically excludes the courts and court records from its
coverage. As such, I do not believe that the Freedom of
Information Law would serve as a basis for seeking the report or
records relating to it.

Second, the ability to gain access to materials at issue
appears to be governed by provisions of the Criminal Procedure Law.
While a grand jury report may be made public, that would be so only
after certain conditions are met. Section 190.85(3) states in
relevant part that:

"The order accepting a report pursuant to
paragraph (a) of subdivision one, and the
report itself, must be sealed by the court and
may not be filed as a public record, or be
subject to subpoena or otherwise be made
public until at least thirty-one days after a
copy of the order and the report are served
upon each public servant named therein, or if
an appeal is taken pursuant to section 190.90,
until the affirmance of the order accepting
the report, or until reversal of the order
sealing the report, or until dismissal of the
appeal of the named public servant by the
appellate division, whichever occurs later."

Further, the provision to which you referred, §190.90(4), states
that:

"The record and all other presentations on
appeal shall remain sealed, except that upon
reversal of the order sealing the report or
dismissal of the appeal of the named public
servant by the appellate division, the report
of the grand jury, with the appendix, if any,
shall be filed as a public record as provided
in subdivision three of section 190.85."

To enable you to become more familiar with the issues relating
to disclosure, enclosed are copies of §§190.85 and 190.90 in their
entirety.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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