August 9, 2016
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, unless otherwise indicated.
I have received your correspondence and the materials associated with it. You have sought guidance concerning records involving law enforcement maintained both by agencies, such as the office of a district attorney or sheriff, and by courts.
In this regard, first, I point out that the Freedom of Information Law (FOIL) pertains to agency records, and that the term “agency” is defined in §86(3) to mean any entity of state or local government in New York, except the judiciary or the state legislature. It is clear that the office of a district attorney constitutes an “agency”, and that conclusion was reached in one of the earliest decisions rendered under FOIL [Dillon v. Cahn, 359 NYS2d 981 (1974)]. “Judiciary” is defined in §86(1) to mean “the courts of the state, including any municipal or district court, whether or not of record”.
Although the courts are not subject to FOIL, most court records are available to the public pursuant to other provisions of law. Notable are §§255 and 255-b of the Judiciary Law. The former states, in brief, that records maintained by a clerk of a court are public. The latter, entitled “Dockets of clerks to be public”, provides that “A docket-book, kept by a clerk of a court, must be kept open, during the business hours fixed by law, for search and examination by any person. Also important, particularly in relation to municipalities, is §2019-a of the Uniform Justice Court Act, which applies to town and village justice courts, and generally requires that records maintained by those courts are public, unless a separate statute indicates that particular records are confidential or sealed.
Among those court records that are sealed or otherwise confidential pursuant to a statute are those involving situations in which charges concerning a criminal offense are dismissed in favor of an accused (Criminal Procedure Law, §160.50); records which if disclosed would identify or tend to identify the victim of a sex offense (Civil Rights Law, §50-b); records pertaining to the arrest and disposition of juveniles (Family Court Act, §784); and in some situations, records relating to the arrest of “an apparently eligible youth”, a person from 16 through 18 years of age. The provisions pertaining to those persons are, in my view, unusual.
When an accusatory instrument is filed against an apparently eligible youth, it is filed as a sealed instrument, and the records and proceedings relating to the matter are generally closed. However, the sealing provisions do not apply to a charge of a felony (Criminal Procedure Law, §720.15), but that may be temporary, for if a court adjudicates a person as a youthful offender, the records relating to the proceeding become sealed. That being so, circumstances arise in which the public may be aware that an apparently eligible youth has been charged with a felony, but the public may be unable to gain access to a record indicating that the youth has been convicted, or whether the charge has been dismissed. Another aberration relates to a situation in which a charge of a felony or misdemeanor results in a conviction of a violation, in which case the records maintained by a police department or office of a district attorney are to be sealed, but the records remain open at the court in which the proceeding was conducted. (Criminal Procedure Law, §160.55).
Assuming that records are not sealed or otherwise determined to be confidential by statute, again, they are generally available from a court, or when maintained by an agency, they are subject to rights conferred by FOIL. That is not intended to suggest that every element of every record falling within the coverage of FOIL is accessible, but rather that FOIL is based on a presumption of access and that records or portions of records may be withheld only to the extent permitted by the exceptions delineated in §87(2) of that statute.
FOIL pertains to all government agency records, and it has been held by the Court of Appeals that records in possession of an agency that emanate from the courts are “agency records” subject to FOIL [Newsday v. Empire State Development Corporation, 98 NY2d 359 (2002)]. Also, when an agency has copies of records submitted into evidence or disclosed during a public judicial proceeding and are available from a court, they are equally available from the agency [Moore v. Santucci,151 AD2d 677 (1989)].
Second, historically public are police blotters and booking records, both of which were included among records available pursuant to FOIL as originally enacted in 1974. The phrase “police blotter” is not defined in any provision of law, and often the contents of police blotters will differ from one police department to another. In a decision dealing with the issue based on history, custom and usage, it was determined in Sheehan v. City of Binghamton that is a log or diary in which events reported by or to a police department are briefly summarized and contain no investigative information. If a blotter is more expansive, it is possible that portions may be withheld, i.e. the name of a juvenile who was arrested or perhaps a witness to a crime.
With respect to records of arrest, often known as “booking records”, according to the New York Fair Trial Free Press Conference, an association consisting of leading judges, law enforcement officials and representatives of the news media that develop commonly recognized and accepted guidelines:
“When and after an arrest is made, the following information should be made available for publication:
(a) The accused’s name, age, residence, employment, marital status and similar background information.
(b) The substance or text of the charge such as a complaint, indictment, information and, where appropriate, the identity of the complainant.
(c) The identity of the investigating and arresting agency and length of the investigation.
(d) The circumstances immediately surrounding the arrest, including the time and place of arrest, resistance, pursuit, possession and use of weapons and a description of items seized at the time of arrest.”
The guideline referenced above is similar to the requirements imposed by §500-f of the Correction Law, which applies to county jails and is entitled “Record of commitments and discharges”.
“Each keeper shall keep a daily record, to be provided at the expense of the county, of the commitments and discharges of all prisoners delivered to his charge, which shall contain the date of entrance, name, offense, term of sentence, fine, age, sex, place of birth, color, social relations, education, secular and religious, for what any by whom committed, how and when discharged, trade or occupation, whether so employed when arrested, number of previous convictions. The daily record shall be a public record, and shall be kept permanently in the office of the keeper."
When the items described above are available from a county jail, I believe that equivalent information maintained by a law enforcement agency also must be disclosed.
I hope that I have been of assistance.
Robert J. Freeman