March 1, 1995



Mr. Edward Fisch
Woodbourne Corr. Facility
Pouch No. 1
Woodburne, NY 12788

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Fisch:

I have received your letter of January 23 in which you sought advice concerning access to records.

You wrote that you were convicted of attempted murder by a jury and that you are seeking notes prepared by State Police detectives and statements made by a prosecution witness. You were informed that there are no notes and that statements made by the witness could be withheld due to considerations of privacy. It is your view that "any statements made by a prosecution witness who testifies, which she did, were to be made available to the defendant."

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 matter. In Moore, it was found 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., 679).

Based on the foregoing, insofar as witnesses' statements are submitted into evidence or disclosed by means of a public judicial proceeding, I believe that they must be disclosed.

On the other hand, if witness statements have not been previously disclosed, two grounds for denial appearing in the Freedom of Information Law would appear to be relevant. 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.

The provision dealing directly with privacy, §87(2)(b), permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy". From my perspective, the propriety of a denial of access would, under the circumstances, be dependent upon the nature of statements by the witness or other records pertaining to her that have already been disclosed. If disclosure of the records that have been denied would not serve to infringe upon her privacy in view of prior disclosures, §87(2)(b) might not justifiably serve as a basis for denial. However, if the statements in question include substantially different information, that provision may be applicable.

Also potentially relevant 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 procedures."

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).

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Chief Inspector Francis A. DeFrancesco
Lt. Col. Hanford C. Thomas