August 19, 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.


I have received your letter in which you indicated that you requested a copy of your pre-sentence report from the Genesee County District Attorney’s Office and were informed that "all communications with this Office should be through your attorney."

In this regard, I offer the following comments.

First, I know of no judicial decision that would serve to prohibit an inmate or any other person from asserting rights under the Freedom of Information Law. On the contrary, it has been held that when a person seeks records under the Freedom of Information Law, that person is as a member of the public [see M. Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY 2d 75 (1984)], and that records accessible under that statute must be made equally available to any person, without regard to status or interest [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Similarly, in a decision rendered by the Court of Appeals, the State's highest court, the court

"recognize[d] that petitioners seek documents relating to their own criminal proceedings, and that disclosure of such documents is governed generally by CPL article as well as the Rosario and Brady rules. However, insofar as the Criminal Procedure Law does not specifically preclude defendants from seeking these documents under FOIL, we cannot read such categorical limitation in the statute" [Gould v. New York City Police Department, 89 NY2d 267, 274 (1996)].

Second, although the Freedom of Information Law provides broad rights of access to records, the first ground for denial, §87(2)(a), states that an agency may withhold records or portions thereof that "...are specifically exempted from disclosure by state or federal statute..." Relevant under the circumstances is §390.50 of the Criminal Procedure Law, which, in my opinion represents the exclusive procedure concerning access to pre-sentence reports.

Section 390.50(1) of the Criminal Procedure Law states that:

"Any pre-sentence report or memorandum submitted to the court pursuant to this article and any medical, psychiatric or social agency report or other information gathered for the court by a probation department, or submitted directly to the court, in connection with the question of sentence is confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court. For purposes of this section, any report, memorandum or other information forwarded to a probation department within this state is governed by the same rules of confidentiality. Any person, public or private agency receiving such material must retain it under the same conditions of confidentiality as apply to the probation department that made it available."

In addition, subdivision (2) of §390.50 states in part that: "The pre-sentence report shall be made available by the court for examination and copying in connection with any appeal in the case..."

Most recently, it was confirmed that "Criminal Procedure Law Sec. 390.50 is the exclusive procedure concerning access to such reports, as they are confidential and specifically exempted from disclosure pursuant to State and Federal Freedom of Information Laws. Petitioner...must make a proper application to the Court which sentenced him" (Matter of Roper v. Carway, Supreme Court, New York County, NYLJ, August 17, 2004).

In view of the foregoing, I believe that a pre-sentence report may be made available only upon the order of a court, and only under the circumstances described in §390.50 of the Criminal Procedure Law. It is suggested that you review that statute.

I hope that I have been of some assistance.


Executive Director


BY: Janet M. Mercer
Administrative Professional

cc: David E. Gann