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FOIL-AO-16081

July 20, 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

Thank you for forwarding a copy of the Town of Islip’s response to an appeal of the Town’s denial of a request for records of the Town of Islip Police Department. The request involved a copy of Islip Harbor Police Violation No. 6127 and Islip Harbor Police Summons No. A648961005 and was denied "based on the fact that the records requested are Law Enforcement records." You further wrote that: "During the pendency of any law enforcement proceeding, all records are exempt from FOIL." While it is not our practice to comment on every appeal response received, we are doing so here, in an effort to enhance understanding of and compliance with the Freedom of Information Law. In this regard, we offer the following comments.

There is a distinction in terms of rights of access between those situations in which a person has been charged or found to have engaged in a violation of law, and those in which charges against an individual have been dismissed in his or her favor. In the latter case, records relating to an event that did not result in a conviction ordinarily become sealed pursuant to §160.50 or perhaps other provisions of the Criminal Procedure Law. However, if it is determined that a person has engaged in a violation, i.e., of the Town Code, the records would be available from the court in which the proceeding occurred, such as the Town Justice Court (see Uniform Justice Court Act, §2019-a). Further, the Court of Appeals determined in 1984 that traffic tickets issued and lists of violations of the Vehicle and Traffic Law compiled by the State Police during a certain period in a county must be disclosed, unless charges were dismissed and the records sealed pursuant to provisions of the Criminal Procedure Law (see Johnson Newspaper Corp. v. Stainkamp, 61 NY2d 958, 475 NYS2d 272 [1984]).

Although that decision did not pertain to the kind of violations here, we believe that the principle would be applicable in this instance. In short, unless it has been sealed pursuant to statute, a notice of violation or summons would in our opinion be accessible from either the Town Justice Court or other Town offices that maintain the record.

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: Mr. and Mrs. Paul C. Mulford