November 1, 2001
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.
I have received your letter in which you requested an opinion on the availability of records related to a DNA sample you were required to provide as an inmate. You also inquired about the "proper procedures" for requesting these records and indicated that the Department of Correctional Services has not responded to your appeal.
In this regard, I offer the following comments.
First, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests and appeals. Specifically, §89(3) of the Freedom of Information Law states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied [see DeCorse v. City of Buffalo, 239 AD2d 949, 950 (1997)]. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:
"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].
Second, with respect to access to records pertaining to your DNA sample, by way of background, 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 first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §995-c of the Executive Law, which authorizes the Division of Criminal Justice Services to establish a state DNA identification index. Subdivision (6) of that statute provides in pertinent part that:
"DNA records contained in the state DNA identification index shall be released only for...(b) criminal defense purposes, to a defendant or his or her representative, who shall also have access to sample and analyses performed in connection with the case in which such defendant is charged..."
Considering that the Division of Criminal Justice Services is the agency responsible for maintaining the state DNA index, it is unlikely that your facility or the Department of Correctional Services maintains the records of your interest. Further, it appears that the Division could release the records to you only for "criminal defense purposes."
I hope that I have been of assistance.
David M. Treacy