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February 19, 1998




Mr. Steven Donati, Jr.
95-A-5022
Otisville Correctional Facility
P.O. Box 8
Otisville, NY 10963

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. Donati:

I have received your letters of January 23. I believe that certain issues
raised were answered in my response to you dated January 26. The remaining
matters relate to appeals under the Freedom of Information Law and
information regarding grand jury proceedings..

In this regard, the provision dealing with the right to appeal a denial
of access to records is found in §89(4)(a) of the Freedom of Information Law,
which states in relevant part that:

"any person denied access to a record may
within thirty days appeal in writing such denial
to the head, chief executive or governing body
of the entity, or the person therefor designated
by such head, chief executive, or governing
body, who shall within ten business days of the
receipt of such appeal fully explain in writing
to the person requesting the record the reasons
for further denial, or provide access to the
record sought."

Further, the regulations promulgated by the Committee on Open
Government (21 NYCRR Part 1401), which govern the procedural aspects
of the Law, state that:

"(a) The governing body of a public
corporation or the head, chief executive or
governing body of other agencies shall hear
appeals or shall designate a person or body to
hear appeals regarding denial of access to
records under the Freedom of Information
Law.

(b) Denial of access shall be in writing
stating the reason therefor and advising the
person denied access of his or her right to
appeal to the person or body established to
hear appeals, and that person or body shall be
identified by name, title, business address and
business telephone number. The records access
officer shall not be the appeals officer" (section
1401.7).

It is also noted that the state's highest court has held that a failure to
inform a person denied access to records of the right to appeal enables that
person to seek judicial review of a denial. Citing the Committee's regulations
and the Freedom of Information Law, the Court of Appeals in Barrett v.
Morgenthau held that:

"[i]nasmuch as the District Attorney failed to
advise petitioner of the availability of an
administrative appeal in the office (see, 21
NYCRR 1401.7[b]) and failed to demonstrate
in the proceeding that the procedures for such
an appeal had, in fact, even been established
(see, Public Officers Law [section] 87[1][b],
he cannot be heard to complain that petitioner
failed to exhaust his administrative remedies"
[74 NY 2d 907, 909 (1989)].

With respect to records relating to matters before a grand jury, as you
may be aware, as a general matter, the Freedom of Information Law is based
upon a presumption of access. Stated differently, all records of an agency are
available, except to the extent that records or portions thereof fall within one
or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

Relevant is the first ground for denial, §87(2)(a), which pertains to
records that "are specifically exempted from disclosure by state or federal
statute". One such statute, §190.25(4) of the Criminal Procedure Law deals
with grand jury proceedings and provides in relevant part that:

"Grand jury proceedings are secret, and no
grand juror, or other person specified in
subdivision three of this section or section
215.70 of the penal law, may, except in the
lawful discharge of his duties or upon written
order of the court, disclose the nature or
substance of any grand jury testimony,
evidence, or any decision, result or other
matter attending a grand jury proceeding."

As such, records concerning grand jury proceedings would be outside the
scope of rights conferred by the Freedom of Information Law. Any disclosure
of those records would be based upon a court order or perhaps a vehicle
authorizing or requiring disclosure that is separate and distinct from the
Freedom of Information Law.

Lastly, the receipt or absence of receipt of an advisory opinion
rendered by this office is irrelevant to the exhaustion of administrative
remedies. Seeking an advisory opinion is optional and is never required by
statute. As such, the timeliness of receipt of an advisory opinion has no
bearing on the time for appealing a denial of access to records or the statute
of limitations.

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

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