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April 4, 2000

FOIL-AO-12027

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, unless otherwise indicated.

Dear

I have received your letter of February 28, as well as the materials attached to it. You
have sought an advisory opinion concerning a request by Newsday reporter John E. Riley for
various records of the Empire State Development Corporation.

One element of the request involves materials that the Corporation provided to the
Office of the New York County District Attorney in response to subpoenas. The Corporation
indicated initially that the request was "overly burdensome" and denied the request on that
basis. Having spoken recently to Lawrence Gerson, the Corporation's records access officer,
I was informed that the Corporation has reconsidered its position and has determined that the
materials subpoenaed will be disclosed, except to the extent that the Freedom of Information
Law authorizes a denial of access in accordance with the grounds for denial appearing in
§87(2) of that statute. Consequently, it appears that that aspect of the request is being
resolved in a manner consistent with law.

The other involves access to subpoenas served upon the Corporation, which has
denied access on the ground that subpoenas issued by a district attorney "are not agency
documents", but rather "are court documents." In reaching that conclusion, the Corporation
cited §§610.10(2) and 610.20(2) of the Criminal Procedure Law. The former defines the
term "subpoena" to mean "a process of a court" directing a person to appear as a witness in
an action or proceeding or to produce and bring specified physical evidence. The latter refers
to a district attorney "as an officer of a criminal court" and states that in his or her capacity as
a prosecutor in a criminal court, he or she may issue subpoenas.

From my perspective, subpoenas issued by the office of a district attorney are agency
records that fall within the coverage of the Freedom of Information Law, rather than court
records that fall beyond the scope of that statute.

As you are aware, the Freedom of Information Law pertains to agency records, and
the term "agency" is defined in §86(3) to include:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one or
more municipalities thereof, except the judiciary or the state
legislature."

In turn, §86(1) defines "judiciary" to mean:

"The courts of the state, including any municipal or district
court, whether or not of record."

While the courts are beyond the requirements of the Freedom of Information Law,
since an office of a district attorney is a "governmental entity" that performs a "governmental
function" for the state and a public corporation (i.e., a county), it is, in my opinion, an
"agency" required to comply with that statute. It is noted that one of the first decisions
rendered under the Freedom of Information Law indicated that certain records of a district
attorney are available [see Dillon v. Cahn, 79 Misc. 2d 300, 259 NYS2d 981 (1974)], and
that several later decisions confirm that records of district attorneys are agency records
subject to rights granted by the Freedom of Information Law in the same manner as records
of agencies generally [see e.g., Barrett v. Morgenthau, 74 NY2d 907; Moore v. Santucci, 543
NYS2d 103, 151 AD2d 677 (1989); New York Public Interest Research Group, Inc. v.
Greenberg, Sup. Ct., Albany Cty., April 27, 1979; Westchester Rockland Newspaper v.
Vergari, 98 AD2d 12 (1983)].

I recognize that certain records maintained by offices of district attorneys have been
found to be court records beyond the coverage of the Freedom of Information Law.
However, in those instances, the records were prepared to reflect and emanated from judicial
proceedings [i.e., grand jury minutes in Harvey v. Hynes, 665 NYS2d 1000 (1997) and trial
transcripts in Moore v. Santucci, supra]. There is no decision of which I am aware that
suggests that records prepared by the office of a district attorney are not "agency records"
subject to whatever rights exist under the Freedom of Information Law.

As it pertains to existing records, 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. It is emphasized that the introductory
language of §87(2) refers to the authority to withhold "records or portions thereof" that fall
within the scope of the exceptions that follow. In my view, the phrase quoted in the
preceding sentence evidences a recognition on the part of the Legislature that a single record
or report, for example, might include portions that are available under the statute, as well as
portions that might justifiably be withheld. That being so, I believe that it also imposes an
obligation on an agency to review records sought, in their entirety, to determine which
portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals expressed its general view of the intent of the Freedom of
Information Law in 1996 in Gould v. NYC Police Department (89 NY2d 267), stating that:

"To ensure maximum access to government records, the
'exemptions are to be narrowly construed, with the burden
resting on the agency to demonstrate that the requested material
indeed qualifies for exemption' (Matter of Hanig v. State of
New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580
N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law §
89[4][b]). As this Court has stated, '[o]nly where the material
requested falls squarely within the ambit of one of these
statutory exemptions may disclosure be withheld' (Matter of
Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of
access to records is inconsistent with the requirements of the Freedom of Information Law.
In that case, the agency contended that certain records could be withheld in their entirety on
the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an
exception separate from those cited in response to your requests. The Court, however, wrote
that: "Petitioners contend that because the complaint follow-up reports contain factual data,
the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276),
and stated as a general principle that "blanket exemptions for particular types of documents
are inimical to FOIL's policy of open government" (id., 275). The Court also offered
guidance to agencies and lower courts in determining rights of access and referred to several
decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency
must articulate 'particularized and specific justification' for not
disclosing requested documents (Matter of Fink v. Lefkowitz,
supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).
If the court is unable to determine whether withheld documents
fall entirely within the scope of the asserted exemption, it
should conduct an in camera inspection of representative
documents and order disclosure of all nonexempt,
appropriately redacted material (see, Matter of Xerox Corp. v.
Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480
N.E.2d 74; Matter of Farbman & Sons v. New York City Health
& Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69,
464 N.E.2d 437)" (id.).

In sum, I believe that the records in question are subject to rights conferred by the
Freedom of Information Law. As such, the extent to which they may be withheld is limited
to the grounds for denial appearing in §87(2).

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Anita W. Laremont
Lawrence Gerson