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April 14, 2000

FOIL-AO-12036

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 March 9 in which you sought advice concerning rights
of access to certain records. As I understand your inquiry, the matter involves rights of
access to records presented by a district attorney to a grand jury.

In this regard, first, as you are aware, 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.

Often relevant with respect to grand jury related records is §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 minutes, records of testimony and other information presented to a grand
jury would, in my view, ordinarily be exempt from disclosure.

Also relevant in the context of criminal proceedings is §87(2)(e), which authorizes 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."

As I understand the nature of the records at issue, they were prepared in the ordinary
course of business and not for any law enforcement or grand jury related purpose. If that is
so, to characterize all of the records at issue as having been compiled for law enforcement
purposes, even though they may be used in or pertinent to an investigation, would be
inconsistent with both the language and the judicial interpretation of the Freedom of
Information Law. The Court of Appeals has held on several occasions that the exceptions to
rights of access appearing in §87(2) "are to be narrowly construed to provide maximum
access, and the agency seeking to prevent disclosure carries the burden of demonstrating that
the requested material falls squarely within a FOIL exemption be articulating a particularized
and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562,
566 (1986); see also, M. Farbman & Sons v. New York City Health and Hospitals Corp., 62
NY 2d 75, 80 (1984); Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]. Based upon the thrust
of those decisions, §87(2)(e) should be construed narrowly in order to foster access.
Further, case law illustrates why §87(2)(e) should be construed narrowly, why the
grand jury secrecy statute does not apply, and why a broad construction of those provisions
would give rise to an anomalous result. Specifically, in King v. Dillon (Supreme Court,
Nassau County, December 19, 1984), the District Attorney engaged in an investigation of the
petitioner, who had served as a village clerk. In conjunction with the investigation, the
District Attorney obtained minutes of meetings of the village board of trustees "pursuant to a
Grand Jury subpoena." Those minutes, which were prepared by the petitioner in his capacity
as village clerk, were requested from the District Attorney. In granting access to the minutes,
the decision indicated that "the party resisting disclosure has the burden of proof in
establishing entitlement to the exemption," and the judge wrote that he:

"must note in the first instance that the records sought were not
compiled for law enforcement purposes (P.O.L. 87[2]e).
Minutes of Village Board meetings serve a different
function...These were public records, ostensibly prepared by
the petitioner, so there can be little question of the disclosure of
confidential material."

Often records prepared in the ordinary course of business, some of which might
already have been disclosed under the Freedom of Information Law, become relevant to or
used in a law enforcement investigation or perhaps in litigation. In my view, when that
occurs, the records would not be transformed into records compiled for law enforcement
purposes. If they would have been available prior to their use in a law enforcement context, I
believe that they would remain available, notwithstanding their use in that context for a
purpose inconsistent with the reason for which they were prepared.

In my opinion, the kinds of records requested, by their nature, indicate that the
exception concerning records "compiled for law enforcement purposes" is inapplicable. To
contend that records prepared for purposes wholly unrelated to any law enforcement
investigation may now be withheld due to their use in an investigation would, in my opinion,
be unreasonable and subvert the purposes of the Freedom of Information Law [see also John
Doe Corp. v. John Doe Agency, in which the United States Court of Appeals reached the
same conclusion construing the federal Freedom of Information Act; 850 F2d 105 (1988)].
In support of this view, I again point to the decision rendered by the Court of Appeals in
Capital Newspapers, supra. In its discussion of the intent of the Freedom of Information
Law, the court found that the statute:

"affords all citizens the means to obtain information concerning
the day-to-day functioning of the state and local government
thus providing the electorate with sufficient information to
'make intelligent, informed choices with respect to both the
direction and scope of governmental activities' and with an
effective tool for exposing waste, negligence or abuse on the
part of government officers" (id. at 566).

That decision, in fact, dealt with time and attendance records, which were found to be
accessible, that are likely similar to those that are the subject of your inquiry.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Hon. Kenneth Bruno, District Attorney