April 21, 1995



Mr. David L. Rich, Esq.
Medina & O'Brien, P.C.
151 Broadway
Hawthorne, NY 10532-1103

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. Rich:

I have received your letter of March 22, as well as a variety of related materials.

According to your letter, you represent retired public employees who were the subjects of an investigation involving allegations that they stole or misappropriated money from a cooperative apartment owned by an associate of a drug dealer who was murdered in 1986. A subsequent investigation sought by the Westchester County District Attorney cleared your clients of any wrongdoing. Three individuals were charged with the 1986 murder, and were tried jointly as co-defendants. Two were convicted; one was acquitted. Having requested documentation relating to the murder investigation and ensuing prosecution, the Office of the Westchester County District Attorney denied access pursuant to §160.50(1)(c) of the Criminal Procedure Law (CPL). Although it will be discussed in detail later, in brief, §160.50 generally requires that records be sealed when charges are dismissed in favor of an accused. In explaining the rationale for the denial, Joseph M. Latino, Assistant District Attorney, indicated that even though "only one of the three co-defendants was acquitted, the statutory seal covers the entire file relating to this case as, by law, 'all official records and papers' 'relating to the arrest or prosecution' must be sealed upon the acquittal of even a single defendant." He added that "[a]bsent an order of the court, no part of this file may be disclosed, via the FOIL or otherwise."

You have requested an advisory opinion "on the issue of whether or not the FOIL exemption provided by the sealing provision of CPL 160.50 extends to convicted co-defendants."

In this regard, as you are aware, pursuant to §89(1)(b)(ii) of the Public Officers Law, this office is authorized to provide advice and opinions pertaining to the Freedom of Information Law. While the interpretation of other statutes, such as §160.50 of the CPL, may fall beyond the scope of the Committee's advisory jurisdiction, other statutes must often be construed in conjunction with the Freedom of Information Law in an effort to offer appropriate advice. In this instance, insofar as §160.50 of the Criminal Procedure Law applies, the Freedom of Information Law does not, and vice versa. Consequently, in order to advise with respect to the Freedom of Information Law, there must of necessity, be some interpretation of §160.50

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 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 CPL (CPL). 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...

(c) 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 a court in which a proceeding was heard has not directed otherwise, typically when charges are dismissed in favor of an accused, records of or relating to the charges would be sealed in conjunction with the provisions quoted above.

Although I am not an expert with respect to §160.50, having discussed it with those who are, I believe that it is largely intended to protect the privacy and reputations of those against whom criminal charges were initiated, but were, for any number of reasons, dismissed. As I see it, the statute in question is intended to preclude an event that did not result in conviction or a finding of guilt from being associated with a person, perhaps for the remainder of that person's life, to his or her detriment. The intent, based on the language of the statute and the opinions of those most familiar with it, is not to shield records pertaining to those who were convicted.

With respect to the Freedom of Information Law, the courts have consistently interpreted that statute in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).

In my opinion, records that pertain exclusively to a person against whom charges have been dismissed would clearly fall within the scope of §160.50 and, therefore, would be exempted from disclosure pursuant to §87(2)(a) of the Freedom of Information Law. There is no judicial decision of which I am aware that deals with the situation in which a record or file might pertain to a number of co-defendants, some of whom are convicted and others acquitted. Having discussed the matter with Maureen Casey, Counsel to the Division of Criminal Justice Services, we agreed that in such a situation, if it is possible to do so, those portions of records identifiable to the person acquitted should be deleted, while the remaining segregable portions pertaining to those who were convicted should be subject to rights conferred by the Freedom of Information Law.

The judicial response to the situation that you described would be, at this juncture, conjectural. However, the recommendation that records be redacted in order to segregate those portions pertaining to an acquitted person from those pertaining to convicted persons would appear to give effect to the principles enunciated earlier and the intent of both the Freedom of Information Law and §160.50 of the Criminal Procedure Law.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Joseph M. Latino
Richard E. Weill
Maureen Casey