May 9, 1997




Mr. Dennis B. Riscen
Groveland Correctional Facility
Route 36 - Sonyea Road
Sonyea, NY 14556

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Riscen:

I have received your letter of April 14 and the correspondence
attached to it.

You requested a variety of records from the Office of the Erie
County District Attorney pertaining to your arrest and conviction.
The request was denied on the basis of Civil Rights Law, §79 or
§79-a, which deal with the forfeiture of one's civil rights. You
have asked whether those provisions would be applicable, and if
they are not, whether the records sought must be disclosed.

In this regard, I offer the following comments.

First, I know of no judicial decision in which it has been
held that the provisions of the Civil Rights Law cited by the
Office of the District Attorney serve in any way to prohibit an
inmate or any other person from asserting rights under the Freedom
of Information Law. On the contrary, it has been held that when a
person seeks records under the Freedom of Information Law, that
person is as a member of the public [see M. Farbman & Sons v. New
York City Health and Hosps. Corp., 62 NY 2d 75 (1984)], and that
records accessible under that statute must be made equally
available to any person, without regard to status or interest [see
Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d
165 (1976)]. Similarly, in a recent decision rendered by the Court
of Appeals, the State's highest court, the court

"recognize[d] that petitioners seek documents
relating to their own criminal proceedings,
and that disclosure of such documents is
governed generally by CPL article as well as
the Rosario and Brady rules. However, insofar
as the Criminal Procedure Law does not
specifically preclude defendants from seeking
these documents under FOIL, we cannot read
such categorical limitation in the statute"
[Gould v. New York City Police Department, 89
NY2d 267, 274 (1996)].

Second, one aspect of your request involves a list of all
records in possession of the Office of the District Attorney
relating to your case. In this regard, I note that the Freedom of
Information Law pertains to existing records. Section 89(3) of
that statute provides in part that an agency need not create a
record in response to a request. Therefore, if, for example, no
such list exists, the agency would not be required to prepare a
list on your behalf.

Third, with respect to rights of access, 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 §87(2)(a)
through (i) of the Law. While some aspects of the records sought
might properly be withheld, relevant is the Gould decision cited
earlier, for it dealt with complaint reports prepared by police
officers and police officers' memo books in which it was held that
a denial of access based on their characterization as intra-agency
materials would be inappropriate.

The provision at issue, §87(2)(g) of the Freedom of
Information Law, enables an agency to withhold records that:

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

i. statistical or factual tabulations or

ii. instructions to staff that affect the

iii. final agency policy or determinations;

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 could appropriately be asserted. 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.

In its analysis of the matter, the decision states that:

"...we note that one court has suggested that
complaint follow-up reports are exempt from
disclosure because they constitute nonfinal
intra-agency material, irrespective of whether
the information contained in the reports is
'factual data' (see, Matter of Scott v. Chief
Medical Examiner, 179 AD2d 443, 444, supra
[citing Public Officers Law §87[2][g][111]).
However, under a plain reading of §87(2)(g),
the exemption for intra-agency material does
not apply as long as the material falls within
any one of the provision's four enumerated
exceptions. Thus, intra-agency documents that
contain 'statistical or factual tabulations or
data' are subject to FOIL disclosure, whether
or not embodied in a final agency policy or
determination (see, Matter of Farbman & Sons
v. New York City Health & Hosp. Corp., 62 NY2d
75, 83, supra; Matter of MacRae v. Dolce, 130
AD2d 577)...

"...Although the term 'factual data' is not
defined by statute, the meaning of the term
can be discerned from the purpose underlying
the intra-agency exemption, which is 'to
protect the deliberative process of the
government by ensuring that persons in an
advisory role [will] be able to express their
opinions freely to agency decision makers'
(Matter of Xerox Corp. v. Town of Webster, 65
NY2d 131, 132 [quoting Matter of Sea Crest
Constr. Corp. v. Stubing, 82 AD2d 546, 549]).
Consistent with this limited aim to safeguard
internal government consultations and
deliberations, the exemption does not apply
when the requested material consists of
'statistical or factual tabulations or data'
(Public Officers Law 87[2][g][i]. Factual
data, therefore, simply means objective
information, in contrast to opinions, ideas,
or advice exchanged as part of the
consultative or deliberative process of
government decision making (see, Matter of
Johnson Newspaper Corp. v. Stainkamp, 94 AD2d
825, 827, affd on op below, 61 NY2d 958;
Matter of Miracle Mile Assocs. v. Yudelson, 68
AD2d 176, 181-182).

"Against this backdrop, we conclude that the
complaint follow-up reports contain
substantial factual information available
pursuant to the provisions of FOIL. Sections
of the report are devoted to such purely
factual data as: the names, addresses, and
physical descriptions of crime victims,
witnesses, and perpetrators; a checklist that
indicates whether the victims and witnesses
have been interviewed and shown photos,
whether crime scenes have been photographed
and dusted for fingerprints, and whether
neighborhood residents have been canvassed for
information; and a blank space denominated
'details' in which the officer records the
particulars of any action taken in connection
with the investigation.

"However, the Police Department argues that
any witness statements contained in the
reports, in particular, are not 'factual'
because there is no assurance of the
statements' accuracy and reliability. We
decline to read such a reliability requirement
into the phrase 'factual data', as the dissent
would have us do, and conclude that a witness
statement constitutes factual data insofar as
it embodies a factual account of the witness's
observations. Such a statement, moreover, is
far removed from the type of internal
government exchange sought to be protected by
the intra-agency exemption (see, Matter of
Ingram v. Axelrod, 90 AD2d 568, 569 [ambulance
records, list of interviews, and reports of
interviews available under FOIL as 'factual
data']). By contrast, any impressions,
recommendations, or opinions recorded in the
complaint follow-up report would not
constitute factual data and would be exempt
from disclosure. The holding herein is only
that these reports are not categorically
exempt as intra-agency material. Indeed, the
Police Department is entitled to withhold
complaint follow-up reports, or specific
portions thereof, under any other applicable
exemption, such as the law-enforcement
exemption or the public-safety exemption, as
long as the requisite particularized showing
is made" [(id., 276- 277) emphasis added by
the Court].

Based on the foregoing, neither a police department nor an
office of a district attorney can claim that the kinds of reports
that you requested can be withheld in their entirety on the ground
that they constitute intra-agency materials. However, the Court
was careful to point out that other grounds for denial might apply
in consideration of those records, as well as others that you

For instance, of potential significance is §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 or other details
in a variety of situations, i.e., where a record identifies a
confidential source or a witness, for example.

Often the most relevant provision concerning access to records
maintained by law enforcement agencies is §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 §87(2)(e).

Another possible ground for denial is §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.

Lastly, 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 assistance.



Robert J. Freeman
Executive Director


cc: John J. DeFranks
J. Michael Marion