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March 7, 2000

FOIL-AO-11982

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

I have received your letter of January 26 in which you sought my views concerning a
series of events occurring in the Village of Piermont.

According to your letter, on January 21, an employee of the Village "was arraigned in
open court and charges were read to him", and a copy of the charges were placed in the
records of the Piermont Police Department. In your capacity as chief executive officer of the
Village, you requested a copy of the charges, but the Chief of Police denied your request,
"stating that the District Attorney had instructed him not to give [you] a copy." You asked
whether, under the circumstances that you described, the Chief of Police "could legitimately
refuse a request for documents from the Mayor..."

From my perspective, the denial of your request was inconsistent with law. In this
regard, I offer the following comments.

First, although the courts are not subject to the Freedom of Information Law, other
statutes confer rights of access to court records. In this instance, pursuant to §2019-a of the
Uniform Justice Court Act, which applies to village and town justice courts, the record of the
arraignment and charges would in my view have been available to any person.

Second, in a related vein, even when records may ordinarily be withheld under the
Freedom of Information Law, once they have been introduced in a public judicial proceeding,
an agency no longer has the authority to deny access [see Moore v. Santucci, 151 AD2d 677
(1989)]. In this instance, because the arraignment occurred in a public proceeding during
which any member of the public could have been present, and since the court's record of that
proceeding would be public, a duplicate of the same record would, in my opinion, be
available from the Village under the Freedom of Information Law.

Third, as you are aware, provisions of the Village Law detail the powers and duties of
various village officials. Pertinent in this instance is §4-400(1)(e), which states that "[i]t
shall be the responsibility of the mayor...to exercise supervision over the conduct of the
police and other subordinate officers of the village." Additionally, §4-402(a) provides that
the village clerk is the custodian of village records. Based on those provisions, while the
Police Chief may have had physical custody of the record in question, I do not believe that he
had legal custody or control over the record.

Lastly, since the person arraigned was a Village employee, it would appear that you
were seeking the record not as a member of the public under the Freedom of Information
Law, but rather in the performance of your official duties as chief executive officer of the
Village. In my view, since there was no statute barring disclosure, the Chief should have
honored your request.

I hope that I have been of assistance. If you would like to discuss the matter further,
please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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