March 6, 2002
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
I appreciate having received a copy of your determination of an appeal by Bruce Golding of the Journal News, and I agree that the deletion of personal information appearing in the employment application or resume of a public employee may be withheld on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [Freedom of Information Law, sections 87(2)(b) and 89(2)(b)]. However, it has consistently been advised that portions of such records indicating one's prior convictions must be disclosed.
As you are likely aware, government and private entities are in most instances precluded from asking an applicant for employment whether he or she has been arrested. Under section 160.50 of the Criminal Procedure, if a person is charged with a crime and the charge is later dismissed in favor of the accused, records relating to the event are sealed. In my view, the sealing requirement in that situation is intended to ensure that a charge that did not result in a conviction does not result in detriment or hardship to a person who did not admit his or her guilt or against whom the government could not prove guilt. In contrast, when a person is convicted, the conviction occurs during a public proceeding, and the record of one's conviction is accessible from a court (see e.g., Judiciary Law, section 255). That being so, I do not believe that disclosure of information indicating one's conviction would, if disclosed, constitute an unwarranted invasion of personal privacy. I note, too, that the Court of Appeals in Johnson Newspaper Corp. v. Stainkamp [94 AD2d 825, 61 NY2d 958 (1984)] held that records of arrest maintained by an agency were accessible, except in those instances in which they were sealed pursuant to section 160.50 of the Criminal Procedure Law.
Based on the foregoing, I ask that you reconsider the determination.
I hope that I have been of assistance.
Robert J. Freeman
cc: Bruce Golding