June 17, 2013

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 appreciate receipt of a copy of your determination addressed to David E. McCraw, Counsel to the New York Times, who appealed a denial of a request made pursuant to the Freedom of Information Law by Times reporter Francis Robles.  Your determination, in my view, is inconsistent with law.

You referred to a request for a list of homicide cases in which a named detective “testified as a witness at trial” and denied access “because those cases are the subject of open and ongoing investigations, and disclosure of the list would interfere with the investigations”, citing section 87(2)(e)(i) of the Freedom of Information Law.   While the exception on which you rely may be applicable in a variety of circumstances, it is clear that records reflective of information disclosed during a public judicial proceeding must be disclosed, unless the records have been sealed, i.e., due to a dismissal of charges in favor of an accused.  No such claim was offered in your response to Mr. McCraw.

Illustrative of that principle is the decision rendered in Moore v. Santucci [151 AD2d 677 (1989)], which involved a request for records relating to a criminal case that would “generally be exempt from disclosure”, but in which it was found 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” (id., 679). Similarly, in Rainbow News 12 Company v. District Attorney of Suffolk County (Supreme Court, Suffolk County, June 30, 1992), videotaped confessions were found to be public once they were used in open court.  It was determined that “The tapes were placed in the public domain when they were played in open court.”

In the context of the Times’ request, assuming that your statement is accurate, that the record sought pertains to a detective who testified during public judicial proceedings, the rationale for your denial of the request is, in my opinion, without merit. 

In an effort to avoid the possibility of litigation, I ask that you reconsider your determination.


Robert J. Freeman
Executive Director