March 15, 2004

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.


As you are aware, the Committee on Open Government has received your correspondence which focuses on the "Freedom of Information Law as it relates to Crime Victims’ Rights."

You referred to newspaper articles that include information which, in your view, might "compromise [a criminal] investigation or trial" and asked why "the public’s ‘right to know’ prevail[s] and become[s] more important than a crime victim’s and/or defendant’s right to a fair, complete, and un-compromised investigation or trial." One of the articles indicates that records, specifically statements made to police officers, were obtained from the "County Clerk’s Office."

You raised a series of questions concerning the foregoing pertaining to the intent, implementation and interpretation of the Freedom of Information Law. In this regard, I offer the following comments.

First, while your criticism is thoughtfully expressed, it does not appear that the disclosure to which you referred or the problems that you believe may be created by those or similar disclosures involve the Freedom of Information Law.

That statute is applicable to agency records, and §86(3) defines the term "agency" to include:

"...any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

In turn, §86(1) defines the term "judiciary" to mean:

"...the courts of the state, including any municipal or district court, whether or not of record."

Based on the foregoing, the Freedom of Information Law applies to records maintained by a police department or the office of a district attorney, for example. It does not apply, however, to the courts.

Although the courts fall beyond the coverage of the Freedom of Information Law, court records are, in most instances, accessible pursuant to other statutes. Perhaps the most widely applicable provision concerning access to court records is §255 of the Judiciary Law. In brief, that statute requires a clerk of a court to search for and make available the records in his or her possession. There are instances in which other statutes forbid the disclosure of court records. Detailed records relating to matrimonial proceedings are available only to the parties and their attorneys pursuant to §235 of the Domestic Relations Law; records that identify or tend to identify victims of sex offenses are confidential under §50-b of the Civil Rights Law; when records involve a criminal proceeding that has been dismissed in favor of the accused, they are generally sealed in accordance with §160.50 of the Criminal Procedure Law.

In the context of your remarks, records made available would not have been disclosed due to the Freedom of Information Law. Rather, it appears that the records were disclosed pursuant to the Judiciary Law, §255.

When a request is made to an agency, the Freedom of Information Law in most situations governs rights of access. Although that statute is based on a presumption of access, there are exceptions, and I believe that they address your concerns. The problem, at least from your perspective, likely involves disclosures made based on rights of access conferred by other statutes. I note as a general matter that when records are filed with a court or accessible under the Freedom of Information Law, they are available to any person, without regard to one’s status or interest [see e.g., M. Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY2d 75 (1984) and Burke v. Yudelson, 368 NYS2d 779, aff’d 51 AD2d 673, 378 NYS2d 165 (1976)]. Further, if, for example, a record that ordinarily could be withheld under the Freedom of Information Law is introduced into evidence or reflects a statement made during a public judicial proceeding, the agency in possession of the records loses the ability to withhold the records [see Moore v. Santucci, 151 AD2d 677 (1989)].

Assuming that the Freedom of Information Law governs rights of access, rather then a statute dealing with court records, perhaps the most significant exception relative to your concerns is §87(2)(e). That provision states that an agency may withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

Based on the foregoing, to the extent that the harmful effects of disclosure described in subparagraphs (i) through (iv) would arise, an agency may deny access in accordance with §87(2)(e).

In consideration of that provision, it has been found that:

"[t]he question is whether the nature of the records sought and the timing of the FOIL request rendered those records exempt from disclosure under FOIL. The Court of Appeals, in Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 572, 419 N.Y.S.2d 467, 393 N.E.2d 463 noted:

‘[T]he purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution’" [Pittari v. Pirro, 258 AD2d 202, 204 (1999)].

The "timing" of a request is significant in determining rights of access as well as the ability to deny access, for the court found that "[i]f a criminal proceeding is pending, mandating FOIL disclosure would interfere with the orderly process of disclosure in the criminal proceeding set forth in CPL article 240" (id., 205).

In addition to §87(2)(e), §87(2)(b) authorizes an agency to deny access to records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." That provision might be asserted in a variety of contexts, i.e., in relation to the identities of victims, witnesses, persons interviewed by a law enforcement agency, etc. Section 87(2)(f) permits an agency to withhold records or portions of records when disclosure "could endanger the life or safety of any person." The proper assertion of that exception would be dependent on the facts and the effects of disclosure.

In short, when no other statute governs access to records, I believe that the Freedom of Information Law provides an agency with the flexibility and the authority to deny access to records in a manner consistent with your concerns. I note that the Freedom of Information Law, however, is permissive. Stated differently, an agency may deny access in accordance with the exceptions referenced earlier, but it is not required to do so.

Lastly, as I understand your comments, you suggested that an agency might choose to disclose records because a court may assess attorney’s fees payable by an agency to a person whose request was improperly denied. In my experience, especially in relation to situations involving law enforcement records, agencies have not been motivated to disclose records based on the possibility that a court might award attorney’s fees to a person who "substantially prevails" in a challenge to a denial of access. As you correctly suggested, if an agency has a reasonable basis for denying access, even if it cannot meet its burden of defending secrecy, a court cannot award attorney’s fees based on the direction provided in §89(4)(c) of the Freedom of Information Law. On average, approximately thirty-five judicial decisions are rendered annually regarding the Freedom of Information Law throughout the entire state, and the award of attorney’s fees is, in fact, rare.

I hope that the preceding comments serve to enhance your understanding of the Freedom of Information Law and a recognition that that statute is not necessarily the basis for disclosure or records in every instance.

If you would like to discuss the matter, or if I can be of assistance, please feel free to contact me.



Robert J. Freeman
Executive Director