July 28, 1997




Mr. John Uciechowski
Ms. Joan Uciechowski
158 Mt. Cliff Road
Hurleyville, NY 12747

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. and Ms. Uciechowski:

As you are aware, I have received your letter of June 28. As
in the case of previous correspondence, the matter involves
requests for records of the Division of State Police. Based on
statements appearing in your letter, it is unclear whether your
understanding of the Freedom of Information Law is accurate.

You referred to a judicial decision as a basis for stating
that "[d]ocuments constituting the final determination of
disciplinary action against State Police investigator were not
immune from agency policy of determination under Public Officers
Law § 87 (2)(g)(iii) [Scaccia, supra]." I would agree that the
decision rendered in Scaccia v. Division of State Police,[138 AD2d
50 (1988)], as well as others, indicate that determinations
reflective of findings of misconduct must be disclosed [see e.g.,
Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975);
Powhida v. City of Albany, 147 AD 2d 236 (1989)]. However, if an
allegation, complaint or charge has not yet resulted in a
determination, or if the determination is that the allegation,
complaint or charge was without merit and is dismissed, I believe
that the records relating to the matter may be withheld [see e.g.,
Prisoners' Legal Services of New York v. NYS Department of
Correctional Services, 73 NY 2d 26 (1988) and Herald Company v.
School District of City of Syracuse, 430 NYS 2d 460 (1980)]. In
short, if your contention is that a determination relative to a
disciplinary matter is always public, irrespective of the outcome,
I disagree. The determination in my view would be public only if
there is a final determination reflective of a finding of
wrongdoing or misconduct.

You also referred to §240.65 of the Penal Law, which states

"A person is guilty of unlawful prevention of
public access to records when, with intent to
prevent the public inspection of a record
pursuant to article six of the public officers
law, he willfully conceals or destroys any
such record."

From my perspective, the preceding may be applicable in two
circumstances: first, when an agency employee receives a request
for a record and indicates that the agency does not maintain the
record even though he or she knows that the agency does maintain
the record; or second, when an agency employee destroys a record
following a request for that record in order to prevent public
disclosure of the record. I do not believe that §240.65 applies
when an agency denies access to a record, even though the basis for
the denial may be inappropriate or erroneous.

Lastly, you made reference to Colonel James A. Fitzgerald, the
person designated to determine appeals at the Division of State
Police. You suggested that since, according to your letter, he has
been accused of wrongdoing in a federal lawsuit, that fact should
"send up a red flag in [this] office." In this regard, whether
Colonel Fitzgerald has been named in a lawsuit is, in my view,
largely irrelevant to the performance of his duties in relation to
the Freedom of Information Law. This office has no control over
the means by which other agencies carry out their duties, and it is
not the business of the Committee on Open Government to question or
second guess the designation of one of its staff in carrying out
the agency's functions under the Freedom of Information Law. In
short, the appearance of Colonel Fitzgerald's name does not "send
up a red flag."



Robert J. Freeman
Executive Director


cc: Colonel James A. Fitzgerald