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June 23, 1998

Ms. Teri Weaver
Syracuse Newspapers
601 Lakeport Road
Chittenango, NY 13037

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 Ms. Weaver:

I have received your letter of June 2 in which you sought an opinion concerning
"youthful offender status as it relates to police arrest information." You wrote that the
Oneida Police Department "recently began withholding arrest information for people ages
16, 17, 18 and 19..."

In this regard, I offer the following comments.

First, 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 º87(2)(a) through (i) of the Law.

Second, the initial ground for denial, º87(2)(a), pertains to records that "are specifically
exempted from disclosure by state or federal statute." While records concerning youthful
offenders might at some point fall within a statutory exemption from disclosure, that point
is reached, in my view, only when or after a court determines that a person is a youthful
offender.

Most relevant to the issue in my view is the provision cited by the Police
Department,º720.15 of the Criminal Procedure Law, which provides that:

"1. When an accusatory instrument against an apparently eligible
youth is filed with a court, the court, with the defendant's consent,
must order that it be filed as a sealed instrument, though only with
respect to the public.

2. When a youth is initially arraigned upon an accusatory instrument,
such arraignment and all proceedings in the action thereafter may, in
the discretion of the court and which the defendant's consent, be
conducted in private.

3. The provisions of subdivisions one and two of this section
requiring or authorizing the accusatory instrument filed against a
youth to be sealed, and the arraignment and all proceedings in the
action be conducted in private shall not apply in connection with a
pending charge of committing any felony offense as defined in the
penal law."

Based upon the foregoing, it is clear in my opinion that only a court has the authority
to seal an accusatory instrument that identifies "an apparently eligible youth". Further,
subdivision (3) of º720.15 narrows the applicability of subdivisions (1) and (2) and the
capacity to seal records or conduct private proceedings by distinguishing between
apparently eligible youths charged with felonies from others. As such, I do not believe
that records pertaining to eligible youths become "exempted from disclosure" by statute
unless or until a court orders that they be sealed.

It is possible that records pertaining to an apparently eligible youth charged with a
felony may at some point be adjudicated a youthful offender, in which case the records
pertaining to that person may be sealed under º720.35 of the Criminal Procedural Law.
However, until that occurs, I believe that the records and proceedings concerning such an
individual would be open to the public to the same extent as similar records or
proceedings concerning adults.

I hope that I have been of assistance.


Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Lt. David Meeker