Opn. No

COUNTY LAW, § 700 (7); JUDICIARY LAW, § 89 (2)

The District Attorney of Suffolk County may not dispose of records under his control without the direction of the Appellate Division, Second Judicial Department.

Hon. Patrick Henry District Attorney, Suffolk County

This is in response to the letter of June 19, 1978, of Assistant District Attorney Steven J. Wilutis, wherein he states that the District Attorney's office of Suffolk County is planning to microfilm and dispose of many of its old files in connection with old indictments, misdemeanor complaints, violations and traffic infractions. He further states that your office is unsure of what laws control the destruction and/or microfilming of such records and asks advice as to the proper procedure to dispose of them.

You are aware that the district attorney must maintain certain records of his office and must turn over those records after the expiration of his term to his successor. County Law, § 700, subdivision 7 states:

"7. The district attorney shall keep and preserve all records now or hereafter in his care or custody or under his control and all records, books and papers relating to the functioning of his office or the performance of his duties. No such record, book or paper shall be destroyed or otherwise disposed of, except pursuant to law. At the expiration of his term, the district attorney shall, within sixty days, turn over all such records, books or papers to his successor in office."

We have examined the descriptive phrases of the various items listed in the letter and conclude that all the material contained in those files would fall within the general category of "records, books and papers" referred to in this section. Therefore, the files may not be disposed of "except pursuant to law."

The provision which would control the disposal of district attorney files is found in the Judiciary Law, § 89, subdivision 2, which states:

"2. Notwithstanding any other provisions of law, the justices of the appellate division of the supreme court in each judicial department may on application of the district attorney of any county within its judicial department, direct, by order, that he destroy, sell or otherwise dispose of or cause to be destroyed, sold or otherwise disposed of any records, books or papers in his care or custody or under his control which are more than twenty-five years old and are no longer in current use, the retention of which in the opinion of the justices of the appellate division would serve no legal, practical or useful purpose, except permanent records of criminal cases, printed and bound volumes of cases on appeal and original indictments. The justices of the appellate division as a condition of such disposition may require the written consent of any state or local department or agency having an interest in such records, books or papers."

Accordingly, we conclude that the District Attorney of Suffolk County may not dispose of the files in his custody without applying to and receiving the direction of the Appellate Division of the Supreme Court. In your instance, the application should be made to Honorable Irving N. Selkin, Clerk of the Appellate Division, Second Judicial Department, 45 Monroe Place, Brooklyn, New York 11201.