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March 23, 1998

Mr. Edwin Madden
97-A-2576
Green Haven Correctional Facility
Drawer B 1 Route 216
Stormville, NY 12582-0010

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. Madden:

I have received your letter of March 2 concerning your efforts in
obtaining records pertaining to your case from the office of the Kings County
District Attorney. You indicated that you requested the records on November
9, and that the receipt of the request was acknowledged on November 21,
indicating that you would shortly receive a response granting or denying your
request. However, as of the date of your letter to this office, you had received
no further response.

In this regard, I offer the following comments.

First, the Freedom of Information Law provides direction concerning
the time and manner in which agencies must respond to requests. Specifically,
§89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this
article, within five business days of the receipt
of a written request for a record reasonably
described, shall make such record available to
the person requesting it, deny such request in
writing or furnish a written acknowledgement
of the receipt of such request and a statement
of the approximate date when such request
will be granted or denied..."

Based on the foregoing, an agency must grant access to records, deny
access or acknowledge the receipt of a request within five business days of
receipt of a request. When an acknowledgment is given, it must include an
approximate date indicating when it can be anticipated that a request will be
granted or denied. The acknowledgment apparently did not make reference
to such a date.

I note that there is no precise time period within which an agency must
grant or deny access to records. The time needed to do so may be dependent
upon the volume of a request, the possibility that other requests have been
made, the necessity to conduct legal research, the search and retrieval
techniques used to locate the records and the like. In short, when an agency
acknowledges the receipt of a request because more than five business days
may be needed to grant or deny a request, so long as it provides an
approximate date indicating when the request will be granted or denied, and
that date is reasonable in view of the attendant circumstances, I believe that
the agency would be acting in compliance with law.

If neither a response to a request nor an acknowledgment of the
receipt of a request is given within five business days, or if an agency delays
responding for an unreasonable time after it acknowledges that a request has
been received, a request may, in my opinion, be considered to have been
constructively denied. In such a circumstance, I believe that the denial may
be appealed in accordance with §89(4)(a) of the Freedom of Information Law.
That provision 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, 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."

In addition, it has been held that when an appeal is made but a
determination is not rendered within ten business days of the receipt of the
appeal as required under §89(4)(a) of the Freedom of Information Law, the
appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d
774 (1982)].

Second, 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.
Since I am unaware of the contents of all of the records in which you are
interested, or the effects of their disclosure, I cannot offer specific guidance.
Nevertheless, the following paragraphs will review the provisions that may be
significant in determining rights of access to the records in question.

In considering the records falling within the scope of your request,
relevant is a recent decision by the Court of Appeals concerning records
prepared by police officers in which it was held that a denial of access based
on their characterization as intra-agency materials would be inappropriate.
The provision at issue, §87(2)(g) of the Freedom of Information Law, enables
an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to
audits performed by the comptroller and the
federal government..."

It is noted that the language quoted above contains what in effect is a double
negative. While inter-agency or intra-agency materials may be withheld,
portions of such materials consisting of statistical or factual information,
instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different
ground for denial could appropriately be asserted. Concurrently, those
portions of inter-agency or intra-agency materials that are reflective of
opinion, advice, recommendation and the like could in my view be withheld.

In its analysis of the matter, it was determined that the agency could
not claim that the records can be withheld in their entirety on the ground that
they constitute intra-agency materials. However, the Court was careful to
point out that other grounds for denial might apply in consideration of those
records. [Gould, Scott and DeFelice v. New York City Police Department,
89 NY2d 267 (1996)].

For instance, of potential significance is §87(2)(b) of the Freedom of
Information Law, which permits an agency to withhold records or portions
thereof when disclosure would constitute "an unwarranted invasion of
personal privacy". That provision might be applicable relative to the deletion
of identifying details in a variety of situations, i.e., where a record identifies
a confidential source or a witness, for example.

Often the most relevant provision concerning access to records
maintained by law enforcement agencies is §87(2)(e), which permits an
agency to withhold records that:

"are compiled for law enforcement purposes
and which, if disclosed, would:

i. interfere with law enforcement investigations
or judicial proceedings;

ii. deprive a person of a right to a fair trial or
impartial adjudication;

iii. identify a confidential source or disclose
confidential information relating to a criminal
investigation; or

iv. reveal criminal investigative techniques or
procedures, except routine techniques and
procedures."

In my view, the foregoing indicates that records compiled for law enforcement
purposes can only be withheld to the extent that disclosure would result in the
harmful effects described in sub- paragraphs (i) through (iv) of §87(2)(e).

Another possible ground for denial is §87(2)(f), which permits
withholding to the extent that disclosure "would endanger the life or safety of
any person". The capacity to withhold on that basis is dependent upon the
facts and circumstances concerning an event.

Also 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, grand jury related records 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.

It is also noted that in a decision concerning a request for records
maintained by the office of a district attorney that would ordinarily be
exempted from disclosure under the Freedom of Information Law, it was held
that "once the statements have been used in open court, they have lost their
cloak of confidentiality and are available for inspection by a member of the
public" [see Moore v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon
that decision, it appears that records introduced into evidence or disclosed
during a public judicial proceeding should be available. However, in the same
decision, it was also found 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).

The Court in Moore also specified that an agency "is not required to make
available for inspection or copying any suppression hearing or trial transcripts
of a witness' testimony in its possession, because the transcripts are court
records, not agency records" (id. at 680).

Next, in your request, you asked for an "itemized listing" of all records
maintained by the Office of the District Attorney relating to the matter. In this
regard, the Freedom of Information Law pertains to existing records, and
§89(3) states in part that an agency is not required to create a record in
response to a request. Therefore, if no such list exists, the agency would not
be required to prepare such a record on your behalf. Similarly, I am unaware
of any provision of the Freedom of Information Law or judicial decision that
would require that a denial at the agency level identify every record withheld
or a description of the reason for withholding each document be given. Such
a requirement has been imposed under the federal Freedom of Information
Act, which may involve the preparation of a so-called "Vaughn index" [see
Vaughn v. Rosen, 484 F.2D 820 (1973)]. Such an index provides an analysis
of documents withheld by an agency as a means of justifying a denial and
insuring that the burden of proof remains on the agency. Again, I am unaware
of any decision involving the New York Freedom of Information Law that
requires the preparation of a similar index. Further, one decision suggests the
preparation of that kind of analysis might in some instances subvert the
purpose for which exemptions are claimed. In that decision, an inmate
requested records referring to him as a member of organized crime or an
escape risk. In affirming a denial by a lower court, the Appellate Division
found that:

"All of these documents were inter-agency or
intra-agency materials exempted under Public
Officers Law section 87(2)(g) and some were
materials the disclosure of which could
endanger the lives or safety of certain
individuals, and thus were exempted under
Public Officers Law section 87(2)(f). The
failure of the respondents and the Supreme
Court, Westchester County, to disclose the
underlying facts contained in these documents
so as to establish that they did not fall 'squarely
within the ambit of [the] statutory exemptions'
(Matter of Farbman & Sons v. New York City
Health and Hosps. Corp., 62 NY 2d 75, 83;
Matter of Fink v. Lefkowitz, 47 NY 2d 567,
571), did not constitute error. To make such
disclosure would effectively subvert the
purpose of these statutory exemptions which
is to preserve the confidentiality of this
information" [Nalo v. Sullivan, 125 AD 2d
311, 312 (1987)].

Lastly, you asked that fees be waived because you are indigent. While
the federal Freedom of Information Act includes provisions concerning fee
waivers, the New York Freedom of Information Law contains no similar
provisions. Further, it has been held that an agency may charge its established
fees, even when a request is made by an indigent inmate [see Whitehead v.
Morgenthau, 552 NYS2d 518 (1990)].

I hope that the foregoing serves to enhance your understanding of the
Freedom of Information Law and that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

RJF:tt

cc: Chaim Sandler, Paralegal