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FOIL-AO-16047

June 26, 2006

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

We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to requests made to the Office of the Westchester County District Attorney. As you indicate, apparently you were denied access to a copy of a videotaped confession which was played at a trial and then again, more recently, at a pre-trial hearing. Although we do not have information as to final disposition of the matter and/or your role in the proceedings, we offer the following comments.

First, even though records might ordinarily be withheld under the Freedom of Information Law, it has been held that there is no basis for denial once the records have been presented in a public judicial proceeding. In Moore v. Santucci, 543, NYS2d 103, 151 AD2d 677 (1989), the Court found that:

"...while statements of the petitioner, his codefendants and witnesses obtained by the respondent in the course of preparing a criminal case for trial are generally exempt from disclosure under FOIL (see, Matter of Knight v Gold, 53 AD2d 694, appeal dismissed 43 NY2d 841), once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public" [151 AD2d 677,679 (1989)].

In short, by disclosing the videotape in open court, a public disclosure would have already been made. Once that occurs, unless a record is later sealed, nothing in the Freedom of Information Law would serve to enable an agency to deny access to that record.

That principle appears to have been recognized in a case involving an attempt by a new organization to obtain a videotape from the court, which denied the request "based on the court's concerns that the integrity of the evidence in question would be placed in jeopardy" (see People v. Shulman, Supreme Court, Suffolk County, NYLJ, December 24, 1998). Although the trial judge's refusal to provide the videotape was based on its fear that the tape, as evidentiary material, might in some way be damaged, he emphasized that:

"...there are other mechanisms which have already been confirmed by the court in that they could simply file a Foil request with the district attorney's office for a copy of the tape, and based on the appellate law, it's clear that the district attorney's office, if they have a copy, would have to turn it over to News 12...It seems to me that would be the appropriate way to proceed" (Transcript of Order by Hon. Arthur G. Pitts, pp. 5-6, November 6, 1998, County Court, Suffolk County).

In consideration of the foregoing, while the trial judge denied the request for the court's copy of the videotape based on concern for the physical integrity and security of the tape, he essentially recommended that a copy be sought from the District Attorney and recognized that a duplicate must be disclosed by the District Attorney in response to a request made under the Freedom of Information Law.

Lastly, another aspect of Moore may be equally significant, for it was also held that if a record sought was previously made available to the defendant or his or her attorney, there must be a demonstration that neither possesses the record in order to successfully obtain a second copy. Specifically, the decision states that:

"...if the petitioner or his attorney previously received a copy of the agency record pursuant to an alternative discovery device and currently possesses the copy, a court may uphold an agency's denial of the petitioner's request under the FOIL for a duplicate copy as academic. However, the burden of proof rests with the agency to demonstrate that the petitioner's specific requests are moot. The respondent's burden would be satisfied upon proof that a copy of the requested record was previously furnished to the petitioner or his counsel in the absence of any allegation, in evidentiary form, that the copy was no longer in existence. In the event the petitioner's request for a copy of a specific record is not moot, the agency must furnish another copy upon payment of the appropriate fee...unless the requested record falls squarely within the ambit of 1 of the 8 statutory exemptions" (id., 678).

On behalf of the Committee on Open Government we hope this is helpful to you.

Sincerely,

Camille S. Jobin-Davis
Assistant Director
CSJ:tt
cc: Janet DiFiore