October 11, 2017

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, except as otherwise indicated.

Dear :

This is in response to your request for an advisory opinion regarding the manner in which the Office of the New York County District Attorney responded to your Freedom of Information Law (FOIL) request. 

You requested records relating to an investigation of a death that occurred in 1965.  The death was ruled accidental and it is your understanding that no individual was ever arrested or charged with a crime relating to his or her involvement in the death.  The first ground for denial asserted by the agency seems to be the most all-encompassing and, if properly asserted, could possibly justify a blanket denial of access.  The agency advised that:

“[T]he investigation into the death of Dorothy Kilgallen resulted in no criminal charges, and is thus sealed pursuant to Criminal Procedure Law (CPL) §§160.50(1)+(3)(i).  Records of a sealed case are specifically exempt from F.O.I.L. disclosure by state statute.  Public Officers Law (POL) §87(2)(a).”

By way of background, FOIL is based on 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 (o) of the Law.  The District Attorney’s Office is correct that §87(2)(a) authorizes an agency to deny access to records that “are specifically exempted from disclosure by state or federal statute.”  One such statute is §160.50 of the Criminal Procedure Law (“Order upon termination of criminal action in favor of the accused”).  Specifically, subdivision (1) of §160.50 states in relevant part that:

"Upon the termination of a criminal action or proceeding against a person in favor of such person...the record of such action or proceeding shall be sealed and the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated in favor of the accused, and unless the court has directed otherwise, that the record of such action or proceeding has been sealed. Upon receipt of notification of such termination and sealing...

(c) all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency..."

Section 160.50(3)(i) of the CPL states:

“For the purposes of subdivision one of this section, a criminal action or proceeding against a person shall be considered terminated in favor of such person where…prior to the filing of an accusatory instrument in a local criminal court against such person, the prosecutor elects not to prosecute such person. In such event, the prosecutor shall serve a certification of such disposition upon the division of criminal justice services and upon the appropriate police department or law enforcement agency…”

It does not appear that the records that are the subject of your request could properly be characterized as records relating to a criminal action that has been terminated in favor of an individual or individuals accused of a crime.  As indicated above, it is our understanding that the death in question was ruled an accident and no individual was ever arrested or accused of committing a crime in relation to the death.  As such, in our view, CPL §160.50, the mechanism by which a court or prosecutor has a record “sealed” when a criminal action is terminated in favor of the accused, cannot be asserted when there was no criminal action and no individual was ever accused of a crime. 

In my opinion, it is unlikely that the other grounds for denial cited in response to your request can be asserted in relation to all of the records sought, and a review of rights of access should be conducted without regard to the sealing provisions of CPL §160.50.  We emphasize that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals, the state’s highest court, expressed its general view of the intent of FOIL in Gould v. New York City Police Department, 87 NY2d 267 (1996), stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)." (id., 275)

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of FOIL. In that case, the Police Department contended that certain reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree," (id., 276) and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government." (id., 275)

In the context of your requests, the District Attorney’s Office has engaged in a blanket denial of access in a manner which, in my view, is equally inconsistent with law. I am not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by the agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access.

I hope I have been of some assistance. 


Kristin O’Neill
Assistant Director cc:        Susan C. Roque