December 30, 2014
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.
I have received your correspondence and offer the following comments in order to attempt to clarify your understanding.
First and most significantly in consideration of the nature of many of the records sought, §87(2)(a) of the Freedom of Information Law (FOIL) pertains to records that “are specifically exempted from disclosure by state or federal statute.” One such statute is §50-b of the Civil Rights Law, which exempts from disclosure under FOIL any record that identifies or tends to identify the victim of a sex offense. In most instances, only those portions of records which may be withheld in accordance with an exception appearing in §87(2) of FOIL can an agency deny access. However, in a decision rendered by the Court of Appeals, the state’s highest court, it was determined that the confidentiality requirement imposed by §50-b applies to the entirety of a record, stating that an entity is “not obligated to provide the records even though redaction might remove all details which ‘tend to identify the victim’” [Karlin v. McMahon, 96 NY2d 842 (2001)]. Since §50-b applies to “any police report, court file, or other document which tends to identify” the victim of a sex offense, even if deletion of identifying details would serve to protect a victim’s privacy, any such record must be withheld in its entirety to comply that statute. Because many of the records sought would identify or tend to identify the victim of a sex offense, those records must be withheld in response to a request made pursuant to FOIL.
Second, FOIL excludes the courts from its coverage. However, other statutes often provide broad rights of access to court records. The general law pertaining to access to court records is §255 of the Judiciary Law, and §2019-a of the Uniform Justice Court Act deals with records of town and village justice courts. Both provide broad rights of access, but due to the language of §50-b and its interpretation by the Court of Appeals, the courts, as well as police departments and offices of district attorneys, records that identify or tend to identify the victim of a sex offense are beyond the scope of public rights of access.
Third, assuming that §50-b is not applicable, unless a promise of confidentiality was given to a witness or informant, their names would likely be available [see Cornell University v. City of New York Police Department, 153 AD2d 515, leave to appeal denied, 72 NY2d 707 (1990)]. Similarly and in consideration of the passage of time, it is likely that the addresses of those persons should be disclosed, unless it can be demonstrated that disclosure “could endanger the life or safety” of those persons in accordance with §87(2)(f) of FOIL [see Exoneration Initiative v. New York City Police Department, Supreme Court, New York County, July, 12, 2012].
Fourth, criminal conviction histories can be obtained from the Office of Court Administration. I believe that its fee is $52 per request.
Fifth, an element of your request involves physical evidence. Here I point out that FOIL pertains to records; it does not apply to items other than records, such as blood or tissue samples, weapons, etc. [see Allen v. Strojnowski, 129 AD2d 700; motion for leave to appeal denied, 70 NY 2d 871 (1989)].
Next, you requested a “Vaughn type index” detailing documents that were withheld. That kind of index has been required by federal courts in relation to the federal Freedom of Information Act. No court in New York has required the preparation of a similar index relative to this state’s FOIL, and in fact, different guidance has been given [see Nalo v. Sullivan, 125 AD2d 311 (1986)].
You also referred to the Brady decision, which relates to discovery in the context of litigation. As you are aware, the principle is that law enforcement agencies are required to disclose material to a defendant involved in a criminal proceeding that may be exculpatory. The ability to obtain such material is based on a person’s status as a defendant. FOIL is based on a different principle, that records are accessible or deniable in accordance with the exceptions appearing in §87(2), irrespective of the status or need of a person or entity. Stated differently, under FOIL, you have the same rights as any member of the public, and an agency has the same authority to deny access to you, notwithstanding your interest as a former defendant.
Lastly, FOIL pertains to existing records. Since the matter relates to events occurring more than twenty-five years ago, it is possible, if not likely, that many records that once existed have been legally disposed of in accordance with records retention schedules.
I hope that the foregoing serves to clarify your understanding and that I have been of assistance.
Robert J. Freeman