February 4, 1993


Mr. Richard Winkler
Sing Sing Corr. Fac.
354 Hunter Street
Ossining, N.Y. 10562

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 Mr. Winkler:

I have received your letter of January 18 in which you sought
assistance concerning a request made under the Freedom of
Information Law.

According to your letter, you recently requested various
records from the police department that arrested you regarding a
witness who testified against you at your trial. The request was
denied based on a claim that the records were made available to
your trial counsel. It is your view that the records should be
available pursuant to a "Rosario claim". Further, although you
included a request for the name and address of the person to whom
an appeal could be made, the agency failed to provide that

In this regard, I offer the following comments.

First, your rights of access to records as a defendant under
the discovery provisions of the Criminal Procedure Law are separate
from rights conferred by the Freedom of Information Law. Discovery
rights are based on one's status as a defendant or litigant. The
Freedom of Information Law does not generally distinguish among
applicants, and rights conferred by that statute are conferred upon
applicants for records as members of the public.

Second, the decision rendered in Moore v. Santucci [151 AD 2d
677 (1989)] appears to be relevant to the situation that you
described. In Moore, it was found that:

"...if the petitioner or his attorney
previously received a copy of the agency
record pursuant to an alternative discovery
device and currently possesses the copy, a
court may uphold an agency's denial of the
petitioner's request under the FOIL for a
duplicate copy as academic. However, the
burden of proof rests with the agency to
demonstrate that the petitioner's specific
requests are moot. The respondent's burden
would be satisfied upon proof that a copy of
the requested record was previously furnished
to the petitioner or his counsel in the
absence of any allegation, in evidentiary
form, that the copy was no longer in
existence. In the event the petitioner's
request for a copy of a specific record is not
moot, the agency must furnish another copy
upon payment of the appropriate fee...unless
the requested record falls squarely within the
ambit of 1 of the 8 statutory exemptions"
(id., 678).

With respect to access to the kinds of records in which you
are interested, the Court in Moore also noted that:

"while statements of the petitioner, his
codefendants and witnesses obtained by the
respondent in the course of preparing a
criminal case for trial are generally exempt
from disclosure under FOIL (see Matter of
Knight v. Gold, 53 AD2d 694, appeal dismissed
43 NY2d 841), 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.,

Lastly, as you may be aware, when a request for records is
denied, a denial may be appealed in accordance with §89(4)(a) of
the Freedom of Information Law. That provision states in relevant
part that:

"any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive or
governing body of the entity, or the person
therefor designated by such head, chief
executive, or governing body, who shall within
ten business days of the receipt of such
appeal fully explain in writing to the person
requesting the record the reasons for further
denial, or provide access to the record

Further, the regulations promulgated by the Committee on Open
Government (21 NYCRR Part 1401), which govern the procedural
aspects of the Law, state that:

"(a) The governing body of a public
corporation or the head, chief executive or
governing body of other agencies shall hear
appeals or shall designate a person or body to
hear appeals regarding denial of access to
records under the Freedom of Information Law.

(b) Denial of access shall be in writing
stating the reason therefor and advising the
person denied access of his or her right to
appeal to the person or body established to
hear appeals, and that person or body shall be
identified by name, title, business address
and business telephone number. The records
access officer shall not be the appeals
officer" (section 1401.7).

It is also noted that the state's highest court has held that
a failure to inform a person denied access to records of the right
to appeal enables that person to seek judicial review of a denial.
Citing the Committee's regulations and the Freedom of Information
Law, the Court of Appeals in Barrett v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to
advise petitioner of the availability of an
administrative appeal in the office (see, 21
NYCRR 1401.7[b]) and failed to demonstrate in
the proceeding that the procedures for such an
appeal had, in fact, even been established
(see, Public Officers Law [section] 87[1][b],
he cannot be heard to complain that petitioner
failed to exhaust his administrative remedies"
[74 NY 2d 907, 909 (1989)].

Therefore, when a request is denied, the person issuing the
denial is required to inform a person denied access of the right to
appeal as well as the name and address of the person or body to
whom an appeal may be directed.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director