July 28, 1995



Mr. Daniel T. Butler
Assistant District Attorney
Appeals Bureau
Office of the District Attorney
262 Old Country Road
Mineola, NY 11501-4251

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. Butler:

I have received your letter of July 25 in which you asked that I reconsider a portion of an advisory opinion prepared at the request of Mr. Edward MacKenzie on July 21. In brief, it was advised that a copy of a transcript of a judicial proceeding maintained by the Office of the District Attorney of Nassau County constituted a "record" as that term is used in the Freedom of Information Law and, as such, is subject to rights conferred by that statute.

In considering the issue in the opinion of July 21, reference was made to Moore v. Santucci [151 AD 2d 677 (1989)]. In my view, Moore generally stands for the principle that records maintained by an agency, including the office of a district attorney, that would ordinarily be deniable under the Freedom of Information Law become available to the public if they have been disclosed by means of a public judicial proceeding. As stated in that decision: "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. at 679). However, as you correctly pointed out, the decision specified that the respondent office of a district attorney "is not required to make available for inspection or copying any suppression hearing or trial transcripts of a witness' testimony in its possession, because the transcripts are court records, not agency records" (id. at 680).

In view of my oversight and the clear direction provided in Moore, please consider the opinion addressed to Mr. MacKenzie to have been revoked and modified by the remarks offered in the preceding paragraph, specifically, that trial transcripts maintained by the office of a district attorney are court records that are not subject to the Freedom of Information Law. Further, to ensure that Mr. MacKenzie is aware of the modification, a copy of this response will be forwarded to him.

I appreciate having received your comments and hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Edward MacKenzie