February 10, 1998

Mr. Sergio Mendez
Adirondack Correctional Facility
P.O. Box 110
Raybrook, NY 12977-0110

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. Mendez:

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

You have sought assistance in relation to a denial of access to records
by the office of the Bronx County District Attorney pertaining to a matter for
which you were convicted in 1993, and you indicated that "there is no action
or appeal pending on this case." In response to your request, Assistant
District Attorney Patrick Breen wrote that, since the receipt of the request, he
learned that you have an appeal pending concerning what appears to be a
separate matter. He added that: "Because you are presently represented by
counsel, this Office is not permitted to communicate with you. See NYCRR
§1200.35, DR 7-104."

From my perspective, it is unclear why Assistant District Attorney
referred to those provisions or how they may be relevant. DR 7-104, entitled
"Communicating With One of Adverse Interest", states that:

"A. During the course of the representation of a client a
lawyer shall not:

1. Communicate or cause another to
communicate on the subject of the
representation with a party the lawyer knows
to be represented by a lawyer in that matter
unless the lawyer has the prior consent of the
lawyer representing such other party or is
authorized to do so.
2. Give advice to a person who is not
represented by a lawyer, other than the advice
to secure counsel, if the interests of such
person are or have a reasonable possibility of
being in conflict with the interests of the
lawyer's client."

As I understand the matter, your request has no relation to representation.
Further, you initiated the contact for the sole purpose of seeking records
under the Freedom of Information Law, and the indictment to which the
Assistant District Attorney referred is separate from the proceeding that is the
subject of your request. Moreover, as stated by the Court of Appeals in a
case involving a request made under the Freedom of Information Law by a
person involved in litigation against an agency: "Access to records of a
government agency under the Freedom of Information Law (FOIL) (Public
Officers Law, Article 6) is not affected by the fact that there is pending or
potential litigation between the person making the request and the agency"
[Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78
(1984)]. Similarly, in an earlier decision, the Court of Appeals determined
that "the standing of one who seeks access to records under the Freedom of
Information Law is as a member of the public, and is neither enhanced...nor
restricted...because he is also a litigant or potential litigant" [Matter of John
P. v. Whalen, 54 NY 2d 89, 99 (1980)]. Most recently, the Court of Appeals
held that the Criminal Procedure Law does not limit a defendant's ability to
attempt to obtain records under the Freedom of Information Law [Gould v.
New York City Police Department, 89 NY 2d 267 (1996)].

In short, I believe that the Freedom of Information Law imposes a
duty to disclose records, as well as the capacity to withhold them, irrespective
of the status or interest of the person requesting them. To be distinguished
are other provisions of law that may require disclosure based upon one's
status, e.g., as a litigant or defendant, and the nature of the records or their
materiality to a proceeding. For the foregoing reasons, I do not understand
the pertinence of the provisions cited by the Assistant District Attorney to the

Notwithstanding the foregoing, having reviewed your request, one
element involves the provision of "an inventory list, or an Index list of all
documents in such case file..." In this regard, it is noted that the Freedom of
Information Law pertains to existing records, and that §89(3) states in part
that an agency is not required to create a record in response to a request. If
no inventory or index of records exists, the Office of the District Attorney
would not be obliged to prepare such a document on your behalf.

I note as well that it was held in Moore v. Santucci [151 AD 2d 677
(1989)] that if records have been disclosed during a public proceeding, they
are generally available under the Freedom of Information Law. In that
decision, it was also found that an agency need not make available records
that had been previously disclosed to the applicant or that person's attorney,
unless there is an allegation "in evidentiary form, that the copy was no longer
in existence." I also point out that the decision in Moore specified that the
respondent office of a district attorney was "not required to make available for
inspection or copying any suppression hearing or trial transcripts of a witness'
testimony in its possession, because the transcripts are court records, not
agency records" (id. at 680). Some of the records that you described as
having requested from the District Attorney might constitute court records
that the agency is not required to provide.

Lastly, although the federal Freedom of Information Act includes
provisions concerning the waiver of fees, the New York Freedom of
Information Law contains no such language. Further, it has been held that an
agency may charge its established fees, even if the applicant is an indigent
inmate [see Whitehead v. Morgenthau, 552 NYS2d 518 (1990)].

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Patrick Breen, Assistant District Attorney
Michelle Parisien, Esq.