November 15, 1999
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
I have received your letter of October 5 in which you described your Department's
practices concerning the disclosure of records pertaining to apparently eligible youthful
offenders. You referred specifically to a directive given by the Village Justice that the name
of a 16, 17 or 18 year old who has been arrested for a felony cannot be disclosed due to
youthful offender status and questioned the propriety of his position.
From my perspective, the policies of the Department as you described them are fully
consistent with law. 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 §87(2)(a) through (i) of the Law.
Second, the initial ground for denial, §87(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
Most relevant to the issue in my view is §720.15 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 §720.15 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.
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 §720.35 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
I hope that I have been of assistance.
Robert J. Freeman