June 8, 1995



Ms. Marcia R. Kucera
Asst. District Attorney
Office of the District Attorney
Criminal Courts Bldg.
200 Center Drive
Riverhead, NY 11901-3388

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 Ms. Kucera:

I have received your letter of May 12, as well as the materials attached to it.

According to your correspondence, an individual was arrested in February, and approximately a month later, requested records under the Freedom of Information Law from the Office of the Suffolk County District Attorney. You denied the request "based, in part, upon caselaw which stands for the proposition that disclosure of documents during the course of active criminal litigation is governed solely by Article 240 of the Criminal Procedure Law," and you cited a recent decision, Catterson v. Rohl [202 A.D. 2d 420 (1994)], in support of your contention. Nevertheless, following an appeal to the County Attorney, the denial was reversed.

You have sought an advisory opinion on the matter. In this regard, I offer the following comments.

First, I do not believe that the decision rendered in Catterson would be controlling, for, having reviewed that decision, it did not deal with a request made under the Freedom of Information Law. While I am unaware of judicial decisions that have specifically considered the relationship between the Freedom of Information Law and disclosure devices applicable in conjunction with criminal proceedings, the courts have provided direction concerning the Freedom of Information Law as opposed to the use of discovery under the Civil Practice Law and Rules (CPLR) in civil proceedings. In my view, the principle would be the same, that the Freedom of Information Law is a vehicle that confers rights of access upon the public generally, while the disclosure provisions of the CPLR or the Criminal Procedure Law (CPL), for example, are separate vehicles that may require or authorize disclosure of records due to one's status as a litigant or defendant.

As stated by the Court of Appeals in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the CPLR. Specifically, it was found that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.

"CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL. Access to records under CPLR depends on status and need. With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would not, in my opinion, affect either the rights of the public or a litigant under the Freedom of Information Law, or the ability of an agency to withhold records sought under the Freedom of Information Law in accordance with the grounds for denial appearing in §87(2) of that statute.

In sum, I believe that the Freedom of Information Law imposes a duty to disclose records, as well as the capacity to withhold them, irrespective of the status or interest of the person requesting them. To be distinguished are other provisions of law that may require disclosure based upon one's status, e.g., as a defendant, and the nature of the records or their materiality to a proceeding.

Second, the foregoing is not intended to suggest that records sought under the Freedom of Information Law must, of necessity, be disclosed. Although that statute is based on a presumption of access, as you are aware, several grounds for denial appearing in §87(2) may be cited to withhold records or perhaps portions of records in proper circumstances. Therefore, I agree with the determination by the Assistant County Attorney that a blanket denial based on Article 240 of the Criminal Procedure Law would be inappropriate. However, upon consideration of the nature and content of the records sought and the effects of their disclosure, one or more of the grounds for denial in §87(2) might serve to permit a denial of access.

If you would like to discuss the matter, please free to free to contact me. I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Derrick J. Robinson, Assistant County Attorney