January 23, 2001


Mr. Douglas T. Miller
Attica Correctional Facility
Box 149
Attica, NY 14011-0149

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. Miller:

I have received your letter in which you asked whether, in my view, an aspect of the holding in
Miller v. Clark (Supreme Court, Erie County, May 30, 1997) is "good law in this State anymore." You
focused on the portion of the decision dealing with "testifying and non-testifying witness's prior statement

The court in Miller relied on Gould v. New York City Police Department [89 NY2d 267 (1996)]
and concluded that the holding in that decision "does not differentiate between the witnesses that were
called to testify and those who were not" and that "any witness statement, made by any witness, whether
or not that witness testified at the trial, should be disclosed...." From my perspective, that conclusion is not
fully consistent with the holding in Gould.

As I understand the Gould decision, the Court of Appeals rejected the Police Department's
contention that internal documents, so-called complaint follow-up reports, could be withheld in their entirety
as intra-agency materials under §87(2)(g) because they did not relate to any final determination. Rather,
the Court found that portions of those materials, specifically statistical or factual information, cannot be
withheld under that exception. The Court also determined that the exception is intended to deal with
internal governmental communications, and that statements by members of the public fell beyond the scope
of that exception.

Even though factual information could not be withheld under §87(2)(g), the Court in my view was
careful to point out that other exceptions might justifiably be asserted, for the decision states that:

"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. In this connection, we are well aware that any
indeterminate amount of data collected during a criminal investigation may
find its way into police files regardless of whether it ultimately proves to be
reliable, credible, or relevant. Disclosure of such documents could
potentially endanger the safety of witnesses, invade personal rights, and
expose confidential information of nonroutine police procedures. The
statutory exemptions contained in the Public Officers Law, however, strike
a balance between the public's right to open government and the inherent
risks carried by disclosure of police files (see, e.g., Public Officers Law
§ 87[2][b], [e], [f])."

I do not believe that the Court in Gould focused on the distinction between witnesses who testified
at trial and those who did not. Rather, it appears to have focused on the content of records and the effects
of disclosure.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director