January 26, 1999


Mr. Lorin L. Reisner
Debevoise & Plimpton
875 Third Avenue
New York, NY 10022

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

Dear Mr. Reisner:

I have received your recent letter in which you requested an advisory opinion
concerning a denial of access to a certain record by the Office of the Suffolk County District
Attorney (the "District Attorney").

By way of background, you wrote that you represent a Long Island television station,
News 12, which requested "a copy of a videotape played by the District Attorney in open
court on November 4 at the trial of Robert Shulman in Suffolk County Criminal Court." You
added that the proceeding is the first death penalty trial on Long Island since the reinstatement
of capital punishment in New York. The videotape, according to your letter, "depicts images
of the location at which the offenses that are the subject of the trial allegedly took place."

In denying the request, it was contended that "because this is a capital case...prudence
dictates that we refrain from any action which the defendant may again allege, in the context
of an appeal from a conviction, operated to deny his right to a fair trial", citing §87(2)(e)(ii)
of the Freedom of Information Law. That provision, as you are aware, permits an agency to
withhold records "compiled for law enforcement purposes" to the extent that disclosure
would "deprive a person of a right to a fair trial or impartial adjudication..." You indicated
that, following an appeal, the County Attorney sustained the denial, also citing §87(2)(e)(ii),
and additionally suggesting that disclosure would frustrate the purpose of §160.50 of the
Criminal Procedure Law ("CPL"). That statute provides, in brief, that when criminal charges
against an accused are dismissed in his or her favor, the records relating to the matter become

From my perspective, based on the language of the Freedom of Information Law and
its judicial interpretation, the videotape must be disclosed. In this regard, I offer the following

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.

The basis for denial cited by the District Attorney in response to both the request and
the appeal, that disclosure might serve to deny the defendant his right to a fair trial, is, in my
view, without merit. In my opinion, the purpose and intent of the exception involve the ability
of a government agency to withhold records when premature disclosure would adversely
impact a person's right to be treated fairly by those empowered to make determinations. The
videotape was shown in open court to the jurors and any member of the public present in the
courtroom on November 4, 1998, nearly three months ago. To suggest that disclosure of the
videotape now, or at any time after having been presented to the jury, would in some way
prejudice a defendant or "deprive" that person of a right to a fair trial is, in my opinion,
contrary to the thrust of the exception.

Further, even when records might ordinarily be withheld under the Freedom of
Information Law, it has been held that there is no basis for denial once the records have been
presented in a public judicial proceeding. In Moore v. Santucci, a decision rendered by the
Appellate Division, Second Department, the Court found that:

"...while statements of the petitioner, his codefendants and
witnesses obtained by the respondent in the course of
preparing a criminal case for trial are generally exempt from
disclosure under FOIL (see, Matter of Knight v Gold, 53
AD2d 694, appeal dismissed 43 NY2d 841), 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" [151 AD2d 677,679 (1989)].

In short, by showing the videotape in open court, a public disclosure has already been made.
Once that occurs, unless the record is later sealed, nothing in the Freedom of Information
Law would serve to enable an agency to deny access to that record.

That principle appears to have been recognized in a separate but related proceeding.
As you are aware, News 12 attempted to obtain the same videotape from the court, which
denied the request "based on the court's concerns that the integrity of the evidence in question
would be placed in jeopardy" (see People v. Shulman, Supreme Court, Suffolk County,
NYLJ, December 24, 1998).
Although the trial judge's refusal to provide the videotape was based on its fear that the tape,
as evidentiary material, might in some way be damaged, he emphasized that:

"...there are other mechanisms which have already been
confirmed by the court in that they could simply file a Foil
request with the district attorney's office for a copy of the
tape, and based on the appellate law, it's clear that the district
attorney's office, if they have a copy, would have to turn it
over to News 12...It seems to me that would be the
appropriate way to proceed" (Transcript of Order by Hon.
Arthur G. Pitts, pp. 5-6, November 6, 1998, County Court,
Suffolk County).

In consideration of the foregoing, while the trial judge denied the request for the court's copy
of the videotape based on concern for the physical integrity and security of the tape, he
essentially recommended that a copy be sought from the District Attorney and recognized that
a duplicate must be disclosed by the District Attorney in response to a request made under
the Freedom of Information Law.

The suggestion offered by the County Attorney that disclosure would subvert the
purpose of §160.50 of CPL in my view is contrary to common law, statutes, and centuries of
history. If the possibility of a dismissal of charges against an accused served as a valid basis
for withholding records prior to a dismissal, innumerable court records that have routinely
been public prior to and during the pendency of judicial proceedings, such as records of
indictments and arraignments, motion papers and other documentation, would be beyond
public view. Additionally, a variety of other records that have been historically available and
found to be accessible under the Freedom of Information Law, such as booking records,
police blotter entries, mugshots and the like would arguably be removed from public rights
of access if the County Attorney's contention has merit. In my opinion, it does not.

Lastly, the courts have consistently interpreted the Freedom of Information Law
expansively. The Court of Appeals reiterated its general view of the intent of the Freedom
of Information Law most recently in Gould v. New York City Police Department, stating that:

"To ensure maximum access to government records, the
'exemptions are to be narrowly construed, with the burden
resting on the agency to demonstrate that the requested
material indeed qualifies for exemption' (Matter of Hanig v.
State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106,
109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers
Law § 89[4][b]). As this Court has stated, '[o]nly where the
material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld'
(Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419
N.Y.S.2d 467, 393 N.E.2d 463)" [89 NY2d 267, 275 (1996)].

For the reasons expressed in the preceding commentary, I believe that the District
Attorney is required to disclose the videotape sought by News 12.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law and to obviate the need to engage in litigation, copies of this opinion will
be forwarded to the offices of the County Attorney and the District Attorney.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Robert J. Cimino
Steven A. Hovani