October 27, 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 latest correspondence, which, as in the past, relates to requests made to the office of the Nassau County District Attorney pertaining to the arrest and conviction of your husband.

In a lengthy response by Deborah N. Abramson, Assistant District Attorney, reference was repeatedly made to "Rosario material", documents that were made available to your husband's attorney prior to your husband's trial. She denied access to those records pursuant to a holding in Moore v. Santucci [151 AD2d 677 (1989)]. You wrote, however, that you are interested in "Brady material" that was not made available. You also referred to a particular witness and sought her statement, as well as the statements of other witnesses or informants who did not testify. Those records were withheld pursuant to §87(2)(e)(iii) of the Freedom of Information Law

In this regard, and in consideration of certain other aspects of Ms. Abramson's response, I offer the following comments.

First, as she suggested, §89(3) of the Freedom of Information Law requires an applicant to "reasonably describe" the records sought. That being so, although a person requesting records is not required to identify the records of interest with particularity or specificity, he or she must provide sufficient detail to enable agency staff to locate and identify the records falling within the scope of a request.

Second, both Rosario and Brady relate to disclosure to a defendant in the context of a criminal proceeding. The courts have provided direction concerning the Freedom of Information Law as opposed to the use of discovery under the Civil Practice Law and Rules (CPLR) in civil proceedings, and discovery in criminal proceedings under the Criminal Procedure Law (CPL). The principle is that the Freedom of Information Law is a vehicle that confers rights of access upon the public generally, while the disclosure provisions of the CPLR or the CPL, for example, are separate vehicles that may require or authorize disclosure of records due to one's status as a litigant or defendant.

As stated by the Court of Appeals, the state's highest court, 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)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the CPLR. Specifically, it was found that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.

"CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL. Access to records under CPLR depends on status and need. With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].

More recently, the Court of Appeals held that the CPL 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 NY2d 267 (1996)].

In sum, 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 or judicial decisions that may require disclosure based upon one's status, e.g., as a defendant, and the nature of the records or their materiality to a proceeding. The standard for disclosure under Rosario and Brady is different from that under the Freedom of Information Law.

Third, with respect to the prior disclosure of Rosario material, I refer to the decision cited by Ms. Abramson. In that case, the matter involved a request for records maintained by the office of a district attorney that would ordinarily be exempted from disclosure under the Freedom of Information Law, but in which it was held that "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" [see Moore v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon that decision, records introduced into evidence or disclosed prior to or during a public judicial proceeding should be available.

However, in the same decision, it was also found that:

"...if the petitioner or his attorney previously received a copy of the agency record pursuant to an alternative discovery device and currently possesses the copy, a court may uphold an agency's denial of the petitioner's request under the FOIL for a duplicate copy as academic. However, the burden of proof rests with the agency to demonstrate that the petitioner's specific requests are moot. The respondent's burden would be satisfied upon proof that a copy of the requested record was previously furnished to the petitioner or his counsel in the absence of any allegation, in evidentiary form, that the copy was no longer in existence. In the event the petitioner's request for a copy of a specific record is not moot, the agency must furnish another copy upon payment of the appropriate fee...unless the requested record falls squarely within the ambit of 1 of the 8 statutory exemptions" (id., 678).

Based on the foregoing, unless it can be demonstrated that neither you, your husband, nor his attorney any longer have copies of records previously disclosed, those records need not be disclosed to you again.

Lastly, as you are aware, 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 an agency's authority to withhold "records or portions thereof" that fall within the exceptions to rights of access that follow. The phrase quoted in the preceding sentence indicates that a single record may include both accessible and deniable information, and that an agency is required to review records sought, in their entirety, to determine which portions, if any, may justifiably be withheld.

In several areas of Ms. Abramson's response, reference was made to a denial of access to statements by or records relating to witnesses or informants who did not testify at your husband's trial. The basis for denial cited by Ms. Abramson, §87(2)(e)(iii), permits an agency to withhold records "compiled for law enforcement purposes and which, if disclosed", would "identify a confidential source or disclose confidential information relating to a criminal investigation."

In consideration of the kinds of records at issue, this office has in the past advised that §87(2)(e)(iii), as well as two other exceptions, may be pertinent in ascertaining rights of access or, conversely, an agency's authority to deny access. Those other exceptions are §87(2)(b) and (f), which respectively permit an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy" or "could endanger the life or safety of any person."

In many instances, the deletion of names or other identifying details is sufficient to protect privacy and safety and to safeguard against the possibility of identifying a witness or informant. If that is so in the context of your request, I believe that the denial of access was overbroad and portions of the records should be disclosed following the deletion of personally identifiable details.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Deborah N. Abramson