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May 26, 1993



Mr. Charles Washington
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562

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 Mr. Washington:

I have received your letter of May 10 in which you sought
assistance in obtaining records concerning your arrest and the
proceedings that followed from the Office of the Kings County
District Attorney.

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 section 87(2)(a) through (i) of the Law. Since
I am unaware of the contents of the records in which you are
interested, or the effects of their disclosure, I cannot offer
specific guidance. Nevertheless, the following paragraphs will
review the provisions that may be significant in determining rights
of access to the records in question.

Since you referred to various grand jury related records, it
is my view that those records could be withheld if requested under
the Freedom of Information Law. The first ground for denial,
§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 CPL, states 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."

Further, "subdivision three" of §190.25 includes specific reference
to the district attorney. As such, grand jury minutes and related
records would 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.

Of potential significance is section 87(2)(b) of the Freedom of
Information Law, which permits an agency to withhold records or
portions thereof when disclosure would constitute "an unwarranted
invasion of personal privacy". That provision might be applicable
relative to the deletion of identifying details in a variety of
situations, i.e., where a record identifies a confidential source
or a witness, for example.

Perhaps the most relevant provision concerning access to
records maintained by law enforcement agencies is section 87(2)(e),
which permits an agency to withhold records that:

"are compiled for law enforcement purposes and
which, if disclosed, would:

i. interfere with law enforcement
investigations or judicial proceedings;

ii. deprive a person of a right to a fair
trial or impartial adjudication;

iii" identify a confidential source or
disclose confidential information relating to
a criminal investigation; or

iv. reveal criminal investigative techniques
or procedures, except routine techniques and

In my view, the foregoing indicates that records compiled for law
enforcement purposes can only be withheld to the extent that
disclosure would result in the harmful effects described in sub-
paragraphs (i) through (iv) of section 87(2)(e).

Another possible ground for denial is section 87(2)(f), which
permits withholding to the extent that disclosure "would endanger
the life or safety of any person". The capacity to withhold on
that basis is dependent upon the facts and circumstances concerning
an event.

The last relevant ground for denial is section 87(2)(g). The
cited provision permits an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the

iii. final agency policy or determinations; or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government... "

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial applies. Concurrently, those portions of inter-agency
or intra-agency materials that are reflective of opinion, advice,
recommendation and the like could in my view be withheld.

Records prepared by employees of an agency and communicated
within the agency or to another agency would in my view fall within
the scope of section 87(2) (g). Those records might include
opinions or recommendations, for example, that could be withheld.

Lastly, I point out that in a decision concerning a request
for records maintained by the office of a district attorney that
would ordinarily be exempted from disclosure under the Freedom of
Information Law, it was held that "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" [see
Moore v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon that
decision, it appears that records introduced into evidence or
disclosed during a public judicial proceeding should be available.
However, in the same decision, it was also found 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).

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Matthew S. Greenberg, Records Access Appeals Officer