May 20, 1999


Ms. Judy Manzer
Utica Observer- Dispatch
221 Oriskany Plaza
Utica, NY 13501

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, unless otherwise indicated.

Dear Ms. Manzer:

As you are aware, I have received your correspondence of February 8 and May 20.
As indicated to you by phone, based upon previous conversations, it was my belief that you
did not seek a written advisory opinion relative to your letter of February 8. Based upon the
receipt of the more recent correspondence, you indicated that you are seeking an opinion
from this office.

In brief, some time ago you requested records relating to the investigation of Gary
Evans, including his activities, his escape and his death. The Division of State Police denied
the request pursuant to §160.50 of the Criminal Procedure Law.

Section 160.50 pertains to situations in which a criminal action or proceeding against
a person is terminated in favor of that person. In those situations, the records pertaining to
the event relating to the arrest are typically sealed. It is my understanding that the intent of
§160.50 is to preclude the disclosure of information regarding an arrest that did not result in
a conviction in order that the fact of the arrest and related details are not made known later
to the detriment of the individual against whom the charges were terminated. Since Mr.
Evans died, it does not appear that the intent or thrust of §160.50 would be pertinent.
Moreover, as I understand that provision, it would not be applicable. Subdivision (3)
describes the instances in which a criminal action or proceeding against a person is considered
terminated in favor of such person. From my perspective, none of those circumstances would
be pertinent. I note that paragraph (j) of subdivision (3) refers to the sealing of records
following the arrest of an individual but prior to the filing of an accusatory instrument. Since
Mr. Evans had been indicted and arraigned, paragraph (j) would not apply. In short, if my
interpretation of §160.50 is accurate, it would not serve as a basis for a denial of access.

In that event, the Freedom of Information Law would govern 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.

I note that the Court of Appeals, the State's highest court, has stressed that the
Freedom of Information Law should be construed expansively. Most recently, in Gould v.
New York City Police Department [87 NY 2d 267 (1996)], the Court reiterated its general
view of the intent of the Freedom of Information Law, 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)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial
of access to records is inconsistent with the requirements of the Freedom of Information Law.
In that case, the Police Department contended that "complaint follow up reports" could be
withheld in their entirety on the ground that they fall within the exception regarding intra-
agency materials, §87(2)(g), an exception separate from that cited in response to your
request. The Court, however, wrote that: "Petitioners contend that because the complaint
follow-up reports contain factual data, the exemption does not justify complete nondisclosure
of the reports. We agree" (id., 276), and stated as a general principle that "blanket
exemptions for particular types of documents are inimical to FOIL's policy of open
government" (id., 275). The Court also offered guidance to agencies and lower courts in
determining rights of access and referred to several decisions it had previously rendered,
stating that:

" invoke one of the exemptions of section 87(2), the
agency must articulate 'particularized and specific justification'
for not disclosing requested documents (Matter of Fink vl.
Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393
N.E.2d 463). If the court is unable to determine whether
withheld documents fall entirely within the scope of the
asserted exemption, it should conduct an in camera inspection
of representative documents and order disclosure of all
nonexempt, appropriately redacted material (see, Matter of
Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490
N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons
v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d,
at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In the context of your request, I am not suggesting that all of the records sought must
be disclosed. Nevertheless, based on the direction given by the Court of Appeals, I believe
that the records must be reviewed individually by the agency for the purpose of determining
the extent to which their contents fall within the scope of one or more of the grounds for
denial of access.

I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.



Robert J. Freeman
Executive Director


cc: Lt. Col. Bruce M. Arnold
Lt. Laurie M. Wagner