Ms. Maureen Seidel
Roemer and Featherstonhaugh, P.C.
Counselors at Law
99 Pine Street
Albany, NY 12207-2734

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. Seidel:

I have received your letter of June 1 as well as the correspondence attached to it. On behalf of your client, the Schenectady City School District, you have sought an advisory opinion concerning the propriety of a denial of access to records by the City of Schenectady.

Last month, on behalf of the District, you requested the "Police Department file" under the Freedom of Information Law pertaining to a named individual "who was recently found not guilty". The City denied the request on the ground that disclosure would constitute "an unwarranted invasion of personal privacy".

In this regard, I offer the following comments.

First, 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.

Second, aside from §87(2)(b) concerning the ability to withhold records when disclosure would result in an unwarranted invasion of personal privacy, it is likely that the records sought have been sealed. The initial ground for denial, §87(2)(a), pertains to records that are "specifically exempted from disclosure by state or federal statute". One such statute is §160.50 of the Criminal Procedure, which ordinarily requires that records relating to a criminal action that has been dismissed in favor of an accused be sealed. 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...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..."

Assuming that the court in which the proceeding was heard has not directed otherwise, I believe that the records sought would be sealed in conjunction with the provisions quoted above. If that is so, the City would be precluded from disclosing the records at issue, and the records would be exempted from disclosure by statute.

If my assumption is inaccurate, I will ask the Deputy Corporation Counsel who denied your request to so inform me. If he indicates that the records have not been sealed under §160.50 of the Criminal Procedure Law, I will contact you and offer to modify this opinion based on the acquisition of additional facts.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Paul H. Tocker