January 22, 1993


Ms. Cindy Ann Mullen
3108 Devon Avenue
Medford, NY 11763

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.

Dear Ms. Mullen:

I have received your letter of January 6 in which you sought assistance in obtaining records.

Your inquiry involves your right to review the "trial testimony" of a co-defendant of your husband "either with his police statement upon arrest or any testimony given on events for the night the incident occurred." The incident was a murder for which your husband was later convicted. Two co-defendants were convicted of lesser crimes.

In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to agency records, and §86(3) of that statute defines the term "agency" to include:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

In turn, §86()1) of the Law defines "judiciary" to mean:

"the courts of the state, including any municipal or district court, whether or not of record."

Based on the foregoing, police departments or offices of district attorneys, for example, would constitute agencies required to comply with the Freedom of Information Law. The courts and court records, however, would be outside the coverage of the Freedom of Information Law.

That is not to suggest that court records are not available to the public, for there are other provisions of law that may require the disclosure of court records. For instance, §255 of the Judiciary Law states generally that a clerk of a court must search for and make available records in his custody. Insofar as your inquiry involves court records, i.e., testimony given during a public judicial proceeding, it is suggested that you seek such records from the clerk of the appropriate court. A request should include sufficient detail to enable court personnel to locate the records in which you are interested.

With respect to agency records, such as records maintained by a police department or office of a district attorney, I point out that 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 section 87(2)(a) through (i) of the Law.

It would appear that the primary basis for withholding statements of co-defendants would be §87(2)(e) of the Freedom of Information Law. That provision permits an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

As such,the capacity to deny access is limited to the circumstances involving harmful effects of disclosure described in subparagraphs (i) through (iv). At this juncture, it does not appear that disclosure could interfere with an investigation or judicial proceeding or deprive a person of a right to a fair trial; further, the records sought would not appear to reveal any unusual or non-routine criminal investigative technique or procedure. If that is so, subparagraphs (i), (ii) and (iv) would be inapplicable. It is possible, however, that disclosure of portions of the records sought might "identify a confidential source or disclose confidential information relating to a criminal investigation" in conjunction with subparagraph (iii) of §87(2)(e). To that extent, records or portions of records might justifiably be withheld.

I point out that when a denial is challenged in court, the agency denying access has the burden of proving that the records withheld in fact fall within one or more of the grounds for denial [see Freedom of Information Law, §89(4)(b)], and the Court of Appeals, the State's highest court, has held that "Only where the material requested falls squarely within the ambit of one of [the] statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]. In one decision, it was held that since a police department did not show "that anyone was promised anonymity in exchange for his cooperation in the investigation so as to qualify as a 'confidential source'", §87(2)(e)(iii) could not properly be asserted as a basis for a denial of access [Cornell University v. City of New York Police Department, 153 AD 2d 515, 517 (1989)].

It is also noted that in a decision concerning a request for records maintained by the office of a district attorney that would ordinarily be exempted from disclosure under the Freedom of Information Law, it was held 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" [see Moore v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon that decision, it appears that records introduced into evidence or disclosed during a public judicial proceeding should be available.

Lastly, in terms of procedure, each agency subject to the Freedom of Information Law is required to designate a "records access officer". The records access officer has the duty of coordinating an agency's response to requests, and a request should be directed to the records access officer at the agency that maintains the records sought. Further, §89(3) of the Freedom of Information Law requires that an applicant for records must "reasonably describe" the records sought. Therefore, a request should contain sufficient detail to enable agency officials to locate and identify the records.

Enclosed for your review are copies of the Freedom of Information Law and "Your Right to Know", which describes that statute and includes a sample letter of request.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director

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