June 1, 1994



Mr. Anthony Logallo
Wende Correctional Facility
3622 Wende Road
Alden, NY 14004

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. Logallo:

I have received your letter of April 29 in which you seek an
advisory opinion concerning the Freedom of Information Law.

By way of background, you wrote that in 1993 you submitted a
request to the Office of the Suffolk County District Attorney for
copies of "all statements and reports in relation to [your] crime."
Although certain records were sent to you, the victim's statements
were not included. You appealed but did not obtain those
statements. Having requested the victim's statements again in
April, you were informed that the request was "moot" in view of the
September request and appeal and the responses thereto.

You have asked whether the request could properly have been
denied as moot, or whether the agency's records access officer must
inform you "if the document [you] seek exists or not, or otherwise
support a reason for not releasing the document..."

In this regard, judicial interpretations relevant to the
matter appear to reach somewhat contrary conclusions. In one
decision, although a petition was dismissed on the ground that it
was not timely commenced, it was held that a petitioner was not
barred from seeking the records again under appropriate procedures
(Matter of Mitchell, Supreme Court, Nassau County, NYLJ, March 9,
1979). In that situation, if the applicant renewed his or her
request and appealed a denial of access, that person would have
been able to seek judicial review of the denial within four months
of the agency's determination. On the other hand, a proceeding was
found to have been time barred when a challenge to a second denial
of access was made on the same basis as an initial denial, and
there was no change in circumstances [Corbin v. Ward, 160 AD 2d 596

In this instance, I am unaware of any change in circumstances
that would alter rights of access. For purposes of illustration,
such changes may occur in a variety of situations. For instance,
if a matter is currently under investigation, disclosure of records
might interfere with the investigation and be witheld under
§87(2)(e)(i) of the Freedom of Information Law. However, when the
investigation has concluded, the records that were properly
withheld in the first instance may become accessible, for
disclosure would no longer result in any interference.

From my perspective, if an individual chooses not to initiate
an Article 78 proceeding within four months after an agency's
denial of his or her appeal, the choice not to do so should not
forever preclude that person from seeking the records. There may
be changes in circumstances, judicial precedents that could put an
issue in a different light, an acquisition of records from other
sources that might diminish an agency's capacity to justify a
denial, or a change in one's financial ability to initiate a
lawsuit. For those reasons, I do not believe that an agency may in
every instance deny a second request on the basis of mootness.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Marcia Kucera, Assistant District Attorney