April 28, 2014



            As you are aware, this office has advised on many occasions that records relating to criminal offense should be sealed to comply with §160.50 of the Criminal Procedure Law when charges are dismissed in favor of an accused.  In a situation in which records are sealed pursuant to §160.50, they are exempt from disclosure to the public pursuant to §87(2)(a) of FOIL concerning records that “are specifically exempted from disclosure by state or federal statute.”  Because that is so, as a general matter, FOIL provides no rights when §160.50 applies.

            It appears, however, that rights of access to “official records and papers…relating to the arrest or prosecution” referenced in subdivision (1)(c) of §160.50 are conferred not by FOIL, but rather by subdivision (1)(d) of that statute.  That provision states in relevant part that “such records shall be made available to the person accused or to such person’s designated agent…”

            From my perspective, when records are sealed pursuant to §160.50 of the Criminal Procedure Law, FOIL has no application and provides no rights of access to the public, including a person accused.  Because FOIL does not apply, an agency cannot, in my opinion, cite exceptions in that statute as a means of denying access to a person whose charges have been dismissed in his or her favor.  The only statute conferring rights of access to such a person is subdivision (d) of §160.50.

            In your determination of an appeal made by Ms.            , the subject of records that were sealed following the dismissal of charges against her, you denied access based on the exceptions to rights of access appearing in §87(2) of FOIL.  Again, in my view, FOIL serves neither as a basis for disclosure, nor as a basis for a denial of access in the circumstance of Ms.       ’s request.  Rather, the statute granting rights of access is §160.50(d), which does not include the limitations or grounds for denial of access contained in §87(2) of FOIL. 

            In consideration of the foregoing, at Ms.        ’s request, it is asked that you reconsider the response to her denying access to the records sought in view of the direction given in §160.50(1)(d) of the Criminal Procedure Law.

Robert J. Freeman
Executive Director