January 11, 1996



Mr. John Montgomery
Attica Correctional Facility
Box 149
Attica, NY 14011-0149

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. Montgomery:

I have received your letter of December 18, which reached this office on December 27.

You have sought the "intervention" of this office in relation to a request for records directed to Monroe County. The records in question are described as memoranda transmitted between a member of the District Attorney's staff and the District Attorney consisting of "information, suspicions, fact and circumstances" supporting a belief that certain City of Rochester police officers engaged in illegal activities. You indicated that the memoranda, which were prepared between January of 1988 and January of 1990, were used in a federal investigation that led to indictments, and that in August of 1991, they were disclosed to reporters for the Rochester Democrat & Chronicle. In response to your request, you were informed, in your words, that they "were not in the custody of the Records Access Officer, or so he was advised by the said District Attorney." You have alleged that the records are being withheld because they would support your pending litigation.

In this regard, it is noted at the outset that the Committee on Open Government is authorized to provide advice concerning the Freedom of Information Law. The Committee is not empowered to compel an agency to grant or deny access to records or otherwise comply with that statute. Nevertheless, I offer the following comments.

First, 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, 205 AD 2d 779 (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, 205 AD 2d 786 (1994)].

Second, 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.

If the records had not been previously disclosed to the public, it would appear that several grounds for denial would be relevant in ascertaining rights of access. In that circumstance, it is likely that the records or perhaps portions of them might be withheld under §87(2)(b) as an unwarranted invasion of the privacy of those alleged to have engaged in wrongdoing, under §87(2)(e)(iii) pertaining to records compiled for law enforcement purposes the release of which would disclose confidential information relating to a criminal investigation, and under §87(2)(g), for the records consist of intra-agency materials reflective, at least in part, of "suspicions" or conjecture, rather than facts.

However, if the same records were disclosed to the news media, I believe that the ability to withhold the records would essentially have been waived. It has been held that an inadvertent disclosure of records that ordinarily could have been withheld does not create a right of access [see McGraw-Edison v. Williams, 509 NYS2d 285 (1986)]; nevertheless, if the disclosure to the news media was not inadvertent but purposeful, any member of the public in my view would have rights of access to the records. Similarly, in a decision concerning a request for records maintained by the office of a district attorney that would ordinarily be exempted from disclosure under the Freedom of Information Law, it was held that "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" [see Moore v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon that decision, it appears that records introduced into evidence or disclosed during a public judicial proceeding should be available. Although the records at issue may not have been disclosed in the context of a public judicial proceeding, their disclosure to the news media would in my view have same practical effect and the same conclusion with regard to a current request. It has been held that when records are accessible under the Freedom of Information Law, they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held 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 government 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" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records.

I hope that I have been of assistance.



Robert J. Freeman Executive Director


cc: Richard Mackey
John Riley