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December 23, 1993

 

 

Mr. Joseph Formosa
Security Coordinator
Schenectady Municipal Housing Authority
375 Broadway
Schenectady, NY 12305

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,
unless otherwise indicated.

Dear Mr. Formosa:

I have received your letter of November 10, which reached this
office on November 18.

You have sought an advisory opinion concerning a denial of
your request for the records of an arrest of a tenant of the
Schenectady Municipal Housing Authority for "illegal drug
activity". You indicated that illegal drug activity is
specifically prohibited in leases between the Authority and
tenants. Attached to your letter is a copy of a memorandum
addressed to Mayor Duci by Paul Tocker, Deputy Corporation Counsel.
Mr. Tocker wrote that the records you seek may be used in a hearing
concerning the person arrested "to determine [her] future
eligibility for MHA Residency". He referred to §87(2)(e)(ii) of
the Freedom of Information Law and contended that since the
resident's "home is at stake here...to allow a arrest record
without proof of conviction would be prejudicial to her and deprive
her of a fair trial or impartial adjudication in MHA or City Court
eligibility or eviction proceeding". He also wrote that your
statement "that the arrest records are made available to news media
is not relevant to a FOI request."

In this regard, although I attempted to reach Mr. Tocker in an
effort to resolve the matter, I was informed that he will be out of
the office until January 10. Consequently, I offer the following
comments.

First, as a general matter, when records are accessible under
the Freedom of Information Law, they must be made equally available
to any person, regardless of one's status or interest [see Burke v.
Yudelson, 51 AD 2d 673 (1976); Farbman v. New York City, 62 NY 2d
75 (1984)]. The news media has no special rights under the Freedom
of Information Law, and if records are disclosed to the media under
that statute, any person in my opinion would have the same rights
of access.

Second, 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.

From my perspective, unless the arrest record has been sealed
pursuant to §160.50 of the Criminal Procedure Law, it must be
disclosed. Under that statute, when criminal charges have been
dismissed in favor or an accused, the records relating to the
arrest ordinarily are sealed.

Third, although 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 Freedom of Information Law, I believe
that such records continue to be available, for the current statute
was clearly intended to broaden rather than restrict rights of
access. Moreover, it was held by the Court of Appeals nearly ten
years ago that, unless sealed under §160.50 of the Criminal
Procedure Law, records of the arresting agency identifying those
arrested must be disclosed [see Johnson Newspapers v. Stainkamp, 61
NY 2d 958 (1984)].

Lastly, I disagree with Mr. Tocker's reliance on §87(2)(e)(ii)
of the Freedom of Information Law as a basis for withholding the
record in question. That provision authorizes an agency to
withhold records compiled for law enforcement purposes when
disclosure would deprive a person of a right to a fair trial or
impartial adjudication. A proceeding involving possible failure to
comply with provisions of a lease is separate and distinct from a
criminal proceeding relating to the arrest and the record of your
interest. Moreover, the provisions of the lease that you forwarded
refer to "criminal activity" and "drug related criminal activity".
An arrest in my view is related to a charge; it is not reflective
of a final determination that a person is guilty or has engaged in
criminal activity. While a conviction might constitute a proper
basis under the lease for initiating an eviction proceeding, I
would conjecture that an arrest, which does not signify guilt,
would not serve as a basis for initiating such action regarding a
tenant.

For the foregoing reasons, assuming that the arrest record has
not been sealed, I believe that it must be disclosed.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Paul Tocker, Deputy Corporation Counsel
Michael Cuevas, Corporation Counsel