December 10, 1993
Mr. Casey L. Cain
Stormville, NY 12582-0010
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. Cain:
I have received your letter in which you sought assistance in
obtaining a "cooperation agreement" between an assistant district
attorney and a prosecution witness or his counsel, as well as
records pertaining to the prosecution witness, including his
criminal history record.
In this regard, I offer the following comments.
First, it is emphasized that the Freedom of Information Law
pertains to existing records and that §89(3) of the Law states in
part that an agency need not create a record in response to a
request. Therefore, if no cooperation agreement exists in the form
of a record, the Freedom of Information Law would be inapplicable.
Second, insofar as records exist, 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. Since I am
unfamiliar with the contents of any cooperation agreement or
related records, I cannot offer specific guidance concerning rights
of access. However, there may be several grounds for denial
relevant to an analysis of rights of access. For instance,
§87(2)(b) of the Freedom of Information Law enables an agency to
withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy". Perhaps most
significant with respect to the matter is §87(2)(e) which provides
that an agency may withhold records compiled for law enforcement
purposes in certain circumstances, i.e., when such records would
"disclose confidential information relating to a criminal
investigation" or reveal non-routine criminal investigative
techniques and procedures. Further, §87(2)(f) enables an agency to
withhold records when disclosure would "endanger the life or safety
of any person." In the case of each of the grounds for denial
described, the contents of records and the effects of disclosure
would be the factors considered in determining rights of access.
Finally, with regard to criminal history records, the general
repository of those records is the Division of Criminal Justice
Services. While the subject of a criminal history record may
obtain such record from the Division, it has been held that
criminal history records maintained by that agency are exempted
from public disclosure pursuant to §87(2)(a) of the Freedom of
Information Law [Capital Newspapers v. Poklemba, Supreme Court,
Albany County, April 6, 1989]. Nevertheless, if, for example,
criminal conviction records were used in conjunction with a
criminal proceeding by a district attorney, it has been held that
the district attorney must disclose those records [see Thompson v.
Weinstein, 150 AD 2d 782 (1989); also Geames v. Henry, 173 AD 2d
825 (1991)]. It is also noted that while records relating to
convictions may be available from the courts or other sources, when
charges are dismissed in favor of an accused, records relating to
those events are generally sealed pursuant to §160.50 of the
Criminal Procedure Law.
I hope that I have been of some assistance.
Robert J. Freeman