March 17, 1997




Mr. Jose Rodriguez
349-96-04808 09-09
Hazen Street
East Elmhurst, NY 11370

Dear Mr. Rodriguez:

I have received your letter of March 12 in which you requested various materials from this office pertaining to your case.

In this regard, the Committee on Open Government is authorized to provide advice concerning the New York Freedom of Information Law. This office does not have the requested records. Nevertheless, in an effort to assist you, I offer the following comments.

First, since you made reference to 5 U.S.C. §§552 and 552a, I note that they are, respectively, the federal Freedom of Information and Privacy Acts. Those statutes apply only to records maintained by federal agencies. The statute of general application concerning access to records in New York is the New York Freedom of Information Law.

Second, in general, to seek records under the Freedom of Information Law, a request should be directed to the records access officer at the agency that maintains the records. The records access officer has the duty of coordinating an agency's response to requests. Further, §89(3) of the Freedom of Information Law requires that an applicant "reasonably describe" the records sought. Therefore, a request should include sufficient detail to enable agency staff to locate and identify the records.

Third, with respect to rights of access, as a general matter, 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.

Without knowledge of the contents of the records in which you are interested, I cannot offer specific guidance. However, I point out that the first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute". One such statute, §190.25(4) of the Criminal Procedure Law deals with grand jury proceedings and provides in relevant part that:

"Grand jury proceedings are secret, and no grand juror, or other person specified in subdivision three of this section or section 215.70 of the penal law, may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding."

As such, grand jury minutes would be outside the scope of rights conferred by the Freedom of Information Law. Any disclosure of those records would be based upon a court order or perhaps a vehicle authorizing or requiring disclosure that is separate and distinct from the Freedom of Information Law.

I hope that the foregoing serves to enhance your understanding of the matter and that I have been of assistance.



Robert J. Freeman
Executive Director