January 10, 1994



Mr. Joseph R. Gonzalez
Attica Correctional Facility
Attica, NY 14011

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. Gonzalez:

I have received your letter of December 6 in which you
referred to your continuing efforts to obtain records from the
Kings County District Attorney's office. You identified fifteen
items and asked that I contact that agency and "secure" them for

In this regard, the Committee on Open Government is authorized
to provide advice concerning the Freedom of Information Law. The
Committee is not empowered to obtain records on behalf of an
applicant for records or compel an agency to grant or deny access
to records. Nevertheless, I offer the following comments.

First, some of the items sought appear to be court records.
In this regard, 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

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

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 or records
used in evidence during a public judicial proceeding, for reasons
to be discussed later, 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.

Second, as a general matter, 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 §87(2)(a) through (i) of the Law. Since I am
unaware of the contents of the records in which you are interested,
or the effects of their disclosure, I cannot offer specific
guidance. Nevertheless, the following paragraphs will review the
provisions that may be significant in determining rights of access
to the records in question.

Since you referred to grand jury related records, it is my
view that those records could be withheld if requested under the
Freedom of Information Law. The first ground for denial,
§87(2)(a), pertains to records that "are specifically exempted from
disclosure by state or federal statute". One such statute,
§190.25(4) of the Criminal Procedure Law, states in relevant part

"Grand jury proceedings are secret, and no
grand juror, or other person specified in
subdivision three of this section or section
215.70 of the penal law, may, except in the
lawful discharge of his duties or upon written
order of the court, disclose the nature or
substance of any grand jury testimony,
evidence, or any decision, result or other
matter attending a grand jury proceeding."

Further, "subdivision three" of §190.25 includes specific reference
to the district attorney. As such, grand jury minutes and related
records would be outside the scope of rights conferred by the
Freedom of Information Law. Any disclosure of those records would
be based upon a court order or perhaps a vehicle authorizing or
requiring disclosure that is separate and distinct from the Freedom
of Information Law.

You also referred to a "pre-sentence recommendation". Here I
direct your attention to §390.50 of the Criminal Procedure Law,
which, in my opinion represents the exclusive procedure concerning
access to pre-sentence reports and memoranda. That provision
states that:

"Any pre-sentence report or memorandum
submitted to the court pursuant to this
article and any medical, psychiatric or social
agency report or other information gathered
for the court by a probation department, or
submitted directly to the court, in connection
with the question of sentence is confidential
and may not be made available to any person or
public or private agency except where
specifically required or permitted by statute
or upon specific authorization of the court.
For purposes of this section, any report,
memorandum or other information forwarded to a
probation department within this state from a
probation agency outside this state is
governed by the same rules of confidentiality.
Any person, public or private agency receiving
such material must retain it under the same
conditions of confidentiality as apply to the
probation department that made it available."

In addition, subdivision (2) of §390.50 states in part that: "The
pre-sentence report shall be made available by the court for
examination and copying in connection with any appeal in the

In view of the foregoing, I believe that a pre-sentence report
may be made available only upon the order of a court, and only
under the circumstances described in §390.50 of the Criminal
Procedure Law. Further, Matter of Thomas, 131 AD 2d 488 (1987), in
my view confirms that a pre-sentence report may be made available
only by a court or pursuant to an order of the court.

Of potential significance is §87(2)(b) of the Freedom of
Information Law, which permits an agency to withhold records or
portions thereof when disclosure would constitute "an unwarranted
invasion of personal privacy". That provision might be applicable
relative to the deletion of identifying details in a variety of
situations, i.e., where a record identifies a confidential source
or a witness, for example.

Perhaps the most relevant provision concerning access to
records maintained by law enforcement agencies is §87(2)(e), which
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

In my view, the foregoing indicates that records compiled for law
enforcement purposes can only be withheld to the extent that
disclosure would result in the harmful effects described in sub-
paragraphs (i) through (iv) of §87(2)(e).

Another possible ground for denial is §87(2)(f), which permits
withholding to the extent that disclosure "would endanger the life
or safety of any person". The capacity to withhold on that basis
is dependent upon the facts and circumstances concerning an event.

The last relevant ground for denial is §87(2)(g). The cited
provision permits an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the

iii. final agency policy or determinations; or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government... "

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial applies. Concurrently, those portions of inter-agency
or intra-agency materials that are reflective of opinion, advice,
recommendation and the like could in my view be withheld.

Records prepared by employees of an agency and communicated
within the agency or to another agency would in my view fall within
the scope of §87(2)(g). Those records might include opinions or
recommendations, for example, that could be withheld.

I point out 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.
However, in the same decision, it was also 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).

Lastly, you referred to "DD-5's" and police officers' memo
books. In a case dealing with DD-5's, Mitchell v. Slade, it was
found that:

"[t]he Motion Court, after reviewing the
documents in camera, declined to dismiss the
petition and held that respondent had failed
to meet its burden of proving exemption for
the redacted DD-5 follow up report. The
Motion Court held that the exceptions
contained in Public Officers Law §87(2) did
not apply in this factual context, citing
Cornell Univ. v. City of N.Y. Police Dept.
(153 Ad 2d 515), and ordered production of the
DD-5 with appropriate redaction. On this
record, after a careful review of the
documents produced to the Motion Court, we are
satisfied that the materials are not exempt
under the law enforcement exemption (Public
Officers Law §87[2][e] or the intra-agency
(Public Officers Law §87[2][g])" [173 Ad 2d
226, 227 (1991)].

In my opinion, based upon Mitchell, as suggested in that decision,
the "factual context", the specific contents of the records, and
the effects of their disclosure are the factors that must be
considered in determining the extent to which those records may be
withheld or, conversely, must be disclosed.

It has also been held that police officers' memo books are
agency records subject to rights conferred by the Freedom of
Information Law [see Laureano v. Grimes, 179 AD 2d 600 (1992)].
While I am not suggesting that police officers' memo books must be
disclosed in their entirety, based upon Laureano, I believe that
those records fall within the scope of the Freedom of Information
Law and are accessible or deniable, in whole or in part, depending
upon their contents and based upon the kind of analysis described

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Joseph Tucker
Matthew Greenberg