April 4, 1994
Mr. John W. Hopkins
Comstock, NY 12821
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. Hopkins:
As you are aware, I have received your letter of February 28.
Please accept my apologies for the delay in response.
You have asked whether under the Freedom of Information Law
you may obtain: "Instructions on the Law given to a Grand Jury by
a Court or District Attorney in a criminal matter."
In this regard, although the Freedom of Information Law is
based on a presumption of access, 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."
Since the provision quoted above pertains not only to testimony,
but "any matter attending a grand jury proceeding", I believe that
the records in question would be exempted from 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.
I hope that I have been of some assistance.
Robert J. Freeman