A&A: How to Access Copies of New York Police Records Destroyed in Fire?

Q: I’m a documentary producer researching a 1989 criminal case of Daniel Rakowitz. I requested the case files and court transcript for this trial from the New York State Supreme Court Clerk’s Office. At the time that the files were supposed to be delivered, I was informed that the case files and court transcript had been located offsite for storage and were destroyed in a fire.

According to reportage by the New York Daily News, the New York City Office of Court Administration said they would make efforts to accommodate calls for old files through other means and may ask the District Attorney’s office to share documents.

I contacted the Office of Court Administration, explained the above, and heard back via email that “we are not able to assist with destroyed records but if you believe the District Attorney’s Office may be a great option please contact them at your convenience.”

I have no problem contacting the District Attorney’s office directly; however, I have read that although D.A. offices are subject to New York’s Freedom of Information Law, certain records such as grand jury minutes, trial transcripts, and physical evidence are exempt.

I am seeking advice on what my next best step would be to attain the course file/transcript, from either the Office of Court Administration or the District Attorney’s office.

A: I am sorry to hear that you are having trouble getting access to the records you seek.  Unfortunately, we don’t have the resources through this service to provide you with an in-depth analysis of New York’s Freedom of Information Law (“FOIL”).  However, I can provide you with some general information that you might find helpful.

Each state has its own open records law, which requires that a state agency produce existing records that are not otherwise exempt.  A state’s open records law will generally include provisions concerning the timeframe within which an agency needs to make an initial response, along with provisions concerning the specific exemptions that can be claimed to prevent disclosure.  A state’s open records law will also generally include mechanisms for enforcement, such as filing an appeal with the agency and then filing suit.

While I am not sure exactly what types of records you are seeking, as you note, they could present an issue because some (or all) of them could be considered records of the court rather than records of the District Attorney’s office.  See Moore v. Santucci, 543 N.Y.S.2d 103, 151 A.D.2d 677, 680 (1989) (“the respondent 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.”).

Since the records were destroyed in a fire and the court no longer has access to them, I would recommend that your next step be to make a FOIL request with the District Attorney’s Office.  In that request, I would note that the court no longer has the records
because they were destroyed in a fire and that you have no other way of gaining access to those records.  You might also want to note that FOIL is based upon a presumption of access.

You might find the New York Committee on Open Government’s website helpful.  In addition to providing general information regarding FOIL requests, there are also some advisory opinions that you might find useful.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.  No attorney-client relationship has been formed by way of this response.

Your contributions make our work possible.