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FOIL-AO-13586

August 22, 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 information presented in your
correspondence.

Dear

As you are aware, this office has received your letter in which you questioned whether the
New York State Board of Examiners of Sex Offenders is required to comply with the Freedom of
Information Law in response to your request for records pertaining to yourself. You also questioned
the availability of written statements by a facility parole officer contained in an inmate status report
"used by the Division of Parole."

In this regard, I offer the following comments.

First, with respect to your ability to obtain records regarding yourself from the New York
State Board of Sex Offenders, in my opinion, the availability of those records would be dependent
upon their contents and whether they were generated pursuant to the "Sex Offender Registration
Act."

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.

The initial ground for denial in the Freedom of Information Law, §87(2)(a), pertains to
records that "are specifically exempted from disclosure by state or federal statute." Section 50-b
of the Civil Rights Law prohibits agencies from disclosing records that identify victims of sex
offenses. Consequently, the Freedom of Information Law in my view provides no rights of access
to those records.

I note that in Fappiano v. New York City Police Department [95 NY2d 738 (2001)], it was
held that an exception authorizing disclosure to persons "charged" with a sex offense did not apply
to those seeking post-conviction relief. The Court, however, was careful to point out that §50-b
does not authorize a "blanket denial" of access and that it applies only to records which if disclosed
would identify the victims of sex offenses.

With respect to records generated pursuant to the "Sex Offenders Registration Act", Article
6-C of the Correction Law, in my view, disclosure of those records are governed by the Act itself.

By way of brief background, subdivision (1) of §168-b of the Act directs the Division of
Criminal Justice Services to "establish and maintain a file of individuals required to register" under
the Act and includes guidelines concerning the content of what is characterized as the "registry."
Subdivision (2) states that:

"The division is authorized to make the registry available to any
regional or national registry of sex offenders for the purpose of
sharing information. The division shall accept files from any
regional or national registry of sex offenders and shall make such
available when requested pursuant to the provisions of this article.
The division shall require that no information included in the
registry shall be made available except in the furtherance of the
provisions of this article" (emphasis added).

Based on the sentence highlighted above, it is the position of both the Department of Law and the
Division of Criminal Justice Services, and this office concurs, that information contained in the
registry is to be disclosed only pursuant to the provisions of the Act, "only in the furtherance of the
provisions of this article", which, again, is Article 6-C of the Correction Law.

While the Freedom of Information Law deals generally with access to records, agencies'
obligations to disclose records, and their ability to deny access, according to the rules of statutory
construction (see McKinney's Statutes, §32), the different or "special" statute prevails when such
a statute pertains to particular records. Since information contained in the registry may be disclosed
only in furtherance of the Act, the Freedom of Information Law, in my view, does not apply to that
information.

Second, with regard to the availability of a report by a facility parole officer about an
individual, several grounds for denial in the Freedom of Information Law may be applicable.

For instance, §87(2) allows an agency to deny access to records or portions thereof that:

"(b) if disclosed would constitute an unwarranted invasion of
personal privacy...

(e) are compiled for law enforcement purposes and which, if
disclosed, would:

i. interfere with law enforcement investigations or judicial
proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information
relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except
routine techniques and procedures;

(f) if disclosed would endanger the life or safety of any person..."

Section 87(2)(g) of the Freedom of Information Law also enables an agency to withhold
records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials
that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

Lastly, although §95(1) of the Personal Privacy Protection Law generally grants rights of
access to records to a person to whom the records pertain, §95(7) provides that rights of access
"shall not apply to public safety agency records". The phrase "public safety agency record" is
defined by §92(8) to mean:

"a record of the commission of corrections, the temporary state
commission of investigation, the department of correctional services,
the division for youth, the division of probation or the division of
state police or of any agency of component thereof whose primary
function is the enforcement of civil or criminal statutes if such record
pertains to investigation, law enforcement, confinement of persons
in correctional facilities or supervision of persons pursuant to
criminal conviction or court order, and any records maintained by the
division of criminal justice services pursuant to sections eight
hundred thirty-seven, eight hundred thirty seven-a, eight hundred
thirty-seven-c, eight hundred thirty-eight, eight hundred thirty-nine,
eight hundred forty-five, and eight hundred forty-five-a of the
executive law."

Therefore, while the Personal Privacy Protection Law applies to records maintained by state
agencies, rights of access conferred by that law do not include records of agencies or units within
agencies whose primary functions involve investigation, law enforcement or the confinement or
persons in correctional facilities.

I hope that I have been of assistance.

Sincerely,

 

David Treacy
Assistant Director

DT:jm