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December 8, 1997





Mr. Nathan McBride
95-A-6015
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. McBride:

I have received your letter of October 27 in which you sought
assistance in obtaining a record from the office of a district attorney.

According to your letter, the records was withheld because "it was
provided to [you] through [your] attorney." You indicated that you then
submitted a notarized letter indicating that you no longer possess the record.

In this regard, based on the decision rendered in Moore v. Santucci
[151 AD2d 677 (1989)], if a record was made available to you or your
attorney, there must be a demonstration that neither you nor your attorney
possesses the record in order to successfully obtain a second copy.
Specifically, the decision states that:

"...if the petitioner or his attorney previously
received a copy of the agency record pursuant
to an alternative discovery device and
currently possesses the copy, a court may
uphold an agency's denial of the petitioner's
request under the FOIL for a duplicate copy as
academic. However, the burden of proof rests
with the agency to demonstrate that the
petitioner's specific requests are moot. The
respondent's burden would be satisfied upon
proof that a copy of the requested record was
previously furnished to the petitioner or his
counsel in the absence of any allegation, in
evidentiary form, that the copy was no longer
in existence. In the event the petitioner's
request for a copy of a specific record is not
moot, the agency must furnish another copy
upon payment of the appropriate fee...unless
the requested record falls squarely within the
ambit of 1 of the 8 statutory exemptions" (id.,
678).

Based on the foregoing, it is suggested that you contact your attorney
to determine whether he or she continues to possess the record. If the
attorney no longer maintains the record, he or she should prepare an affidavit
so stating that can be submitted to the office of the district attorney.

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

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