June 16, 1995



Mr. Phil King
Pouch No. 1
Woodbourne, 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. King:

I have received your letter of May 22 and the correspondence attached to it. You have sought an advisory opinion concerning what you consider to have been a denial of a request for records by the Office of the Queens County District Attorney. The records sought involve a witness, presumably in your case, and you were informed that no records responsive to the request could be found.

In this regard, I offer the following comments.

First and perhaps most important, the Freedom of Information Law pertains to existing records. Further, §89(3) of that statute provide in part that an agency need not create a record in response to a request. If indeed the Office of the District Attorney does not maintain the records sought, the Freedom of Information Law would not apply. For instance, if there is no record of an agreement concerning immunity between the person you named and the Probation Department or the Office of the District Attorney, there is nothing to be disclosed under the Freedom of Information Law, and the agency would not be obliged to prepare a record containing the information sought on your behalf.

Second, when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search." If you consider it worthwhile to do so, you could seek such a certification.

I point out that in Key v. Hynes [613 NYS 2d 926, __AD 2d__ (1994)], it was found that a court could not validly accept conclusory allegations as a substitute for proof that an agency could not locate a record after having made a "diligent search". However, in another decision, such an allegation was found to be sufficient when "the employee who conducted the actual search for the documents in question submitted an affidavit which provided an adequate basis upon which to conclude that a 'diligent search' for the documents had been made" [Thomas v. Records Access Officer, 613 NYS 2d 929, __AD 2d__ (1994)].

Lastly, when requested materials exist as records and can be located, 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. With regard to "rap sheets" or criminal history records, the general repository of those records is the Division of Criminal Justice Services. While the subject of a criminal history record may obtain such record from the Division, it has been held that criminal history records maintained by that agency are exempted from public disclosure pursuant to §87(2)(a) of the Freedom of Information Law [Capital Newspapers v. Poklemba, Supreme Court, Albany County, April 6, 1989]. Nevertheless, if, for example, criminal conviction records were used in conjunction with a criminal proceeding by a district attorney, it has been held that the district attorney must disclose those records [see Thompson v. Weinstein, 150 AD 2d 782 (1989); also Geames v. Henry, 173 AD 2d 825 (1991)]. It is also noted that while records relating to convictions may be available from the courts or other sources, when charges are dismissed in favor of an accused, records relating to arrests that did not result in convictions are generally sealed pursuant to §160.50 of the Criminal Procedure Law.

With respect to the other kinds of records which you referred, if such records exist, it is likely in my view that they could be withheld in whole or perhaps in part pursuant to §87(2)(b) as an unwarranted invasion of personal privacy, §87(2)(e) on the ground that they constitute records compiled for law enforcement purposes which if disclosed would reveal "confidential information relating to a criminal investigation", or §87(2)(f) on the ground that disclosure would endanger one's life or safety.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: William J. Horwitz