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FOIL-AO-17475

                                                                                                December 23, 2008

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 in which you sought an advisory opinion on behalf of your clients, the Journal News and its online news site, concerning “the refusal of the Town of Bedford Police Department to disclose the name of a 17-year-old suspect charged with a felony offense.”  Despite your efforts, the Chief of Police wrote that “it is and has been a longstanding practice of the Bedford Police Department to not release the name, date of birth and address of those individuals arrested who are under the age of nineteen (19).”

            From my perspective, while shielding the identity of a person charged with a felony may be “longstanding practice” of the Department, that practice is inconsistent with law.  In this regard, I offer the following comments.

            First, 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 (j) 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."  While records concerning “apparently eligible youths” might at some point fall within a statutory exemption from disclosure, that point is reached, in my view, only when or after a court adjudicates a person as a youthful offender thereby determining that records must be sealed and judicial proceedings closed.

            Most relevant to the issue in my view is§720.15 of the Criminal Procedure Law, which provides that:

"1.  When an accusatory instrument against an apparently eligible youth is filed with a court, the court, with the defendant's consent, must order that it be filed as a sealed instrument, though only with respect to the public.

2.  When a youth is initially arraigned upon an accusatory instrument, such arraignment and all proceedings in the action thereafter may, in the discretion of the court and which the defendant's consent, be conducted in private.

3.  The provisions of subdivisions one and two of this section requiring or authorizing the accusatory instrument filed against a youth to be sealed, and the arraignment and all proceedings in the action be conducted in private shall not apply in connection with a pending charge of committing any felony offense as defined in the penal law."

            Based upon the foregoing, it is clear in my opinion that only a court has the authority to seal an accusatory instrument that identifies "an apparently eligible youth".  Further, subdivision (3) of §720.15 narrows the applicability of subdivisions (1) and (2) and the capacity to seal records or conduct private proceedings by distinguishing between apparently eligible youths charged with felonies from others.  As such, I do not believe that records pertaining to eligible youths become "exempted from disclosure" by statute unless or until a court orders that they be sealed.  Further, the records and proceedings pertaining to youths charged with felonies are accessible perhaps permanently or for a period of time.

            It is possible that an apparently eligible youth charged with a felony may at some point be adjudicated a youthful offender, in which case the records pertaining to that person may be sealed under §720.35 of the Criminal Procedural Law.  However, until that occurs, I believe that the records and proceedings concerning such an individual would be open to the public to the same extent as analogous records or proceedings concerning adults.

            Lastly, unless police records relate to the arrests of juveniles, in which case they are confidential and cannot be disclosed absent a court order (see Family Court Act, §784), booking records and records of arrests have historically be accessible to the public.  While arrest records are not specifically mentioned in the current Freedom of Information Law, the original Law granted access to "police blotters and booking records" [see original Law, §88(1)(f)].  In my opinion, even though reference to those records is not made in the current statute, those records continue to be available, for the present law was clearly intended to broaden rather than restrict rights of access.  Moreover, it was held by the Court of Appeals several years ago that, unless sealed under §160.50 of the Criminal Procedure Law, records of the arresting agency identifying those arrested, i.e., booking records, must be disclosed [see Johnson Newspapers v. Stainkamp, 61 NY 2d 958 (1984)].

            In short, for the reasons expressed in the preceding remarks, I believe that the Department’s “longstanding practice...to not release” the names of those arrested who are under the age of 19 is contrary to law.  In an effort to enhance compliance with and understanding of applicable law, copies of this opinion will be sent to Town officials.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Town Board
Christopher Menzel, Chief of Police