May 5, 2003

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.


I have received your letter in which you sought an advisory opinion regarding a request received by the Schuyler County District Attorney's Office for interviews and statements of witnesses contacted by the police during a murder investigation which resulted in a guilty plea.

You wrote that the District Attorney's Office takes the position that "these statements are not accessible because they are '...the statements of witnesses who did not testify at trial...'" In support of the position, the District Attorney cites Matter of Spencer v. New York State Police (187 AD2d 919) and Matter of Johnson v. Charles J. Hynes (264 AD2d 777). You further indicated that research conducted by your office did not "disclose any subsequent Court of Appeals cases overruling or modifying these holdings, including the Gould case cited in [my] December 27, 2002 opinion."

You questioned whether it is possible to have a blanket denial of access to statements of non- testifying witnesses. In this regard, I offer the following comments.

With due respect to the Second and Third Departments, the decisions cited by the District Attorney's Office offer no reasoning to support the holdings. The courts merely asserted conclusory statements that the records should not be available. It is important to note that the possibility of withholding only those portions of the records that would identify the witnesses was not considered in either case. It is also noted that both cases involved requests by inmates for witness statements from their murder cases.

Considering that Gould v. New York City Police Department [89 NY2d 267 (1996)] was discussed at length in my December 27, 2002 opinion, I do not believe it is necessary to reiterate the detail of the analysis related to that decision. Notwithstanding the above cited cases, in light of general guidance provided by Gould, in which the Court of Appeals determined as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275), in my opinion, a blanket denial of access to statements or interviews of non-testifying witnesses would be inconsistent with the thrust of the Freedom of Information Law.

As indicated in my December 27, 2002 letter, 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. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

In my view, in a situation different from those presented in the cases cited by the District Attorney's Office, such as in the instant case where the requester is an author who suggested that the District Attorney's Office delete the names of witnesses prior to releasing the statements and interviews of non-testifying witnesses, a court would likely reach a different conclusion if it conducts an in depth analysis under the Freedom of Information Law.

I hope that I have been of assistance.



David Treacy Assistant Director


cc: Joseph G. Fazzary, District Attorney