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September 11, 2000

FOIL-AO-12318

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 August 5 in which you asked whether you are entitled,
as a crime victim, to gain access to photographs of yourself taken by law enforcement
officers that show your injuries after being beaten. You indicated that the photographs are
maintained "in a police agency sealed criminal file."

In this regard, 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. The initial ground for denial, §87(2)(a),
pertains to records that are "specifically exempted from disclosure by state or federal statute".
One such statute is §160.50 of the Criminal Procedure Law (CPL).

Specifically, subdivision (1) of §160.50 states in relevant part that:

"Upon the termination of a criminal action or proceeding
against a person in favor of such person...the record of such
action or proceeding shall be sealed and the clerk of the court
wherein such criminal action or proceeding was terminated
shall immediately notify the commissioner of the division of
criminal justice services and the heads of all appropriate police
departments and other law enforcement agencies that the action
has been terminated in favor of the accused, and unless the
court has directed otherwise, that the record of such action or
proceeding has been sealed. Upon receipt of notification of
such termination and sealing...

(c) all official records and papers, including judgments and
orders of a court but not including published court decisions or
opinions or records and briefs on appeal, relating to the arrest
or prosecution, including all duplicates and copies thereof, on
file with the division of criminal justice services, any court,
police agency, or prosecutor's office shall be sealed and not
made available to any person or public or private agency..."

Assuming that a court in which a proceeding was heard has not directed otherwise, typically
when charges are dismissed in favor of an accused, records of or relating to the charges
would be sealed in conjunction with the provisions quoted above. If the records in question
were sealed pursuant to §160.50, they would be exempt from disclosure to the public. In that
circumstance, I believe that the only possibility under which you could gain access would
involve an attempt to seek a court order unsealing the records and directing that the
photographs be made available to you.

In the event that the records were not sealed under the CPL, if, for example, there was
a conviction or if the matter is pending, it appears that the photographs would be available to
you. In that situation, they would be subject to rights of access conferred by the Freedom of
Information Law. While the photographs could, in my opinion, be withheld from the public
on the ground that disclosure would result in "an unwarranted invasion of personal privacy"
[see Freedom of Information Law, §§87(2)(b) and 89(2)(b)], I believe that they would be
available to you, if they have not been sealed, for you could not invade your own privacy.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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