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May 31, 2001

 

Ms. Debbie Beach
P.O. Box 385
Sanborn, NY 14132-0385

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff
advisory opinion is based solely upon the facts presented in your correspondence.

Dear Ms. Beach:

I have received your letter relating to an appeal made under the Freedom of Information Law to
the Chairman of the Niagara County Legislature that had not been answered within the statutory time. You
indicated that the Office of the District Attorney informed you that it had disclosed "everything in their file"
pertaining to a certain case. Nevertheless, you wrote that you did not receive a certain "two page
statement", the record that is the subject of your appeal, given by your nephew. The appeal indicates that
the statement was presented to the grand jury.

In this regard, I am unaware of the nature of the case or the record in which you are interested.
Nevertheless, I offer the following comments.

First, as you are likely aware, the provision dealing with the right to appeal a denial of access to
records, §89(4)(a) of the Freedom of Information Law, states in relevant part that:

"...any person denied access to a record may within thirty days appeal in
writing such denial to the head, chief executive, or governing body, who
shall within ten business days of the receipt of such appeal fully explain in
writing to the person requesting the record the reasons for further denial,
or provide access to the record sought."

I note that it has been held that when an appeal is made but a determination is not rendered within
ten business days of the receipt of the appeal as required under §89(4)(a), the appellant has exhausted his
or her administrative remedies and may initiate a challenge to a constructive denial of access under Article
78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774
(1982)].

Second, 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 in the Freedom of Information Law, §87(2)(a), 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, records presented to a grand jury would ordinarily be outside the scope of rights conferred by
the Freedom of Information Law. Any disclosure of those records would be based upon a court order or
perhaps a vehicle authorizing or requiring disclosure that is separate and distinct from the Freedom of
Information Law. If the record in question is subject to provision quoted above, I believe that it would be
exempt from disclosure under the Freedom of Information Law. However, if that record was presented
or submitted into evidence during a public proceeding, the exemption from disclosure, in my view, would
no longer apply [see Moore v. Santucci, 151 AD 2d 677 (1980)].

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. Clyde Burmaster