May 31, 1996



Mr. John Uciechowski
158 Mt. Cliff Road
Hurleyville, NY 12747

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. Uciechowski:

I have received your letter of May 13 in which you again referred to a refusal on the part of the Sullivan County District Attorney to inform you of the reasons for a denial of access and to whom you may direct an appeal. You indicated that the court records regarding the case in which you are interested have been sealed. For the following reasons, I believe that such a response is likely relevant to the matter.

In general, 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 Criminal Procedure Law (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.

Assuming further that the case did not involve a juvenile or youthful offender, but rather an adult, the only rationale with which I am familiar that would authorize the sealing of records would involve §160.50 of the CPL. If my assumptions are accurate, the District Attorney has no choice but to deny the request.

In most instances, the District Attorney is the head of an agency and an appeal is made to that person or his designee. If indeed the District Attorney, as the head of the agency, is the appeals person for the purpose of the Freedom of Information Law, it would appear that the only means of seeking review of his determination would be through a judicial proceeding initiated under Article 78 of the Civil Practice Law and Rules.

I hope that the foregoing serves to clarify the matter.



Robert J. Freeman
Executive Director


cc: Stephen F. Lungen