November 9, 2006



FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.


I have received your letter concerning rights of access to crime scene photos relating to murder convictions occurring in New York City in the 1950's.

In this regard, first, the Freedom of Information Law includes all agency records within its coverage. Section 86(4) defines the term “record” to include:

"...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based on the foregoing, insofar as the photos of your interest continue to exist and are maintained by an agency, such as the New York City Police Department, I believe that they clearly constitute agency records falling within the scope of the Freedom of Information Law.

Second, as a general matter, 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 (j) of the Law. From my perspective, the only possible basis for denial of access would be §87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” That provision would be applicable in my view only if the photos are especially graphic and disclosure would be highly offensive to families of the victims.

Third, notwithstanding the foregoing, when records have been disclosed in a public judicial proceeding, it has been held that they are accessible from an agency that maintains them and that the exceptions in the Freedom of Information Law do not apply [see Moore v. Santucci, 151 AD2d 677 (1989)].

Lastly, although the courts are not subject to the Freedom of Information Law, court records are generally available under other provisions of law (see e.g., Judiciary Law, §255). Therefore, if the photos of your interest are maintained as part of the file concerning a judicial proceeding, I believe they would be available from the court in which the proceeding was conducted. Should you request records from a court, it is suggested that a request be made to the clerk of the court, citing an applicable provision of law as the basis for the request.

I hope that I have been of assistance.