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June 27, 1997

 

 

 

Mr. Terrence X. Tracy
Counsel
NYS Division of Parole
97 Central Avenue
Albany, NY 12206

Dear Mr. Tracy:

I appreciate receipt of your determination of May 19 rendered
pursuant to §89(4)(a) of the Freedom of Information Law following
an appeal by John O'Brien of the Syracuse Herald-Journal. In
short, while I concur with some elements of the determination, I
disagree with others.

By way of background, as you are aware, in February Mr.
O'Brien requested "monthly calendars of Parole Board appearances"
at several correctional facilities that he identified. He also
sought a monthly list of prisoners being released on parole, or as
a result of completing their sentences" at each of those
facilities. Mr. Thomas P. Grant, Special Assistant to the
Executive Director of the Division of Parole, responded on April 25
by denying the request on several grounds, and you affirmed the
denial on May 19.

You referred to Mr. Grant's statement that no "final" calendar
is prepared prior to actual interviews of inmates and indicated
that "some inmates...are tentatively scheduled", but may not be
interviewed. Consequently, it was determined that, because "there
is no final agency document", that aspect of the request was
justifiably denied under §87(2)(g) of the Freedom of Information
Law.

Names of inmates who were interviewed by the Board were also
withheld pursuant to paragraphs (a) and (b) of §87(2) of the
Freedom of Information Law in conjunction with §259-a of the
Executive Law and §8000.5 of the regulations promulgated by the
Board of Parole. Those regulations describe the circumstances
under with the Division is permitted to release information from
its "case records." You wrote that because the information is
"confidential under the Board's regulations, it necessarily follows
that to release such information would constitute an unwarranted
invasion of the inmates' or releasee's personal privacy." The
portion of the request involving the names of inmates who were
released from State facilities to parole supervision was also
denied for the same reasons.

You also confirmed Mr. Grant's assertion that the Freedom of
Information Law does not require that an agency disclose records on
an ongoing basis in response to a single request.

In this regard, I offer the following comments.

First, I agree that an agency is not required to disclose
records pursuant to a request for records that are sought
prospectively. In a technical sense, since the Freedom of
Information Law pertains to existing records, an agency can neither
grant nor deny access to records that do not yet exist. However,
as you inferred, an applicant could seek records on a periodic
basis, and an agency would be obliged to respond to each such
request in accordance with the Freedom of Information Law.

Second, I must respectfully disagree with the substance of the
grounds for denial offered in response to Mr. O'Brien's request.

As you are aware, 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 exceptions to rights of access
appearing in §87(2)(a) through (i) of the Law.

Section 87(2)(g) was cited as the basis for withholding the
calendar on the ground that there is no "final" calendar. Here I
point out that the Court of Appeals recently dealt with a similar
contention and held that whether a document or the event to which
it relates is final is not determinative; on the contrary, the
specific content of records falling within the scope of §87(2)(g)
determines rights of access under that provision.

The argument offered by New York City in that case was that
certain reports could be withheld because they are not final and
because they relate to incidents for which no final determination
had been made. The Court of Appeals rejected that finding and
stated that:

"...we note that one court has suggested that
complaint follow-up reports are exempt from
disclosure because they constitute nonfinal
intra-agency material, irrespective of whether
the information contained in the reports is
'factual data' (see, Matter of Scott v. Chief
Medical Examiner, 179 AD2d 443, 444, supra
[citing Public Officers Law §87[2][g][111]).
However, under a plain reading of §87(2)(g),
the exemption for intra-agency material does
not apply as long as the material falls within
any one of the provision's four enumerated
exceptions. Thus, intra-agency documents that
contain 'statistical or factual tabulations or
data' are subject to FOIL disclosure, whether
or not embodied in a final agency policy or
determination (see, Matter of Farbman & Sons
v. New York City Health & Hosp. Corp., 62 NY2d
75, 83, supra; Matter of MacRae v. Dolce, 130
AD2d 577)..." [Gould et al. v. New York City
Police Department, 87 NY2d 267, 276 (1996)].

The Court also dealt with the issue of what constitutes
"factual data" that must be disclosed under §87(2)(g)(i). In its
consideration of the matter, the Court found that:

"...Although the term 'factual data' is not
defined by statute, the meaning of the term
can be discerned from the purpose underlying
the intra-agency exemption, which is 'to
protect the deliberative process of the
government by ensuring that persons in an
advisory role [will] be able to express their
opinions freely to agency decision makers'
(Matter of Xerox Corp. v. Town of Webster, 65
NY2d 131, 132 [quoting Matter of Sea Crest
Constr. Corp. v. Stubing, 82 AD2d 546, 549]).
Consistent with this limited aim to safeguard
internal government consultations and
deliberations, the exemption does not apply
when the requested material consists of
'statistical or factual tabulations or data'
(Public Officers Law 87[2][g][i]. Factual
data, therefore, simply means objective
information, in contrast to opinions, ideas,
or advice exchanged as part of the
consultative or deliberative process of
government decision making (see, Matter of
Johnson Newspaper Corp. v. Stainkamp, 94 AD2d
825, 827, affd on op below, 61 NY2d 958;
Matter of Miracle Mile Assocs. v. Yudelson, 68
AD2d 176, 181-182) [Gould v. New York City
Police Department, 89 NY2d 267, 276-277
(1996)].

From my perspective, a calendar, whether it is final or subject to
change, would not involve expressions of "opinions, ideas or advice
exchanged as part of the consultative or deliberative process of
government decision making." On the contrary, as characterized in
other decisions, the calendar could in my view be characterized as
"objective" information that must be disclosed. As stated in a
decision cited by the Court of Appeals in Gould, Ingram v. Axelrod,
certain records consisting of "a collection of statements of
objective information logically arranged and reflecting objective
reality" were found to be available. The Court in that decision
also held that "the mere fact that some of the data might be an
estimate or a recommendation does not convert it into an expression
of opinion" [90 AD 2d 568, 569].

In my view, while a calendar may not be final and may be
revised, it would not contain the kind of information, i.e.,
opinion or advice, according to the State's highest court, that
could be withheld under §87(2)(g).

Similarly, I do not believe that the information sought is
exempted from disclosure by statute in accordance with §87(2)(a) or
that disclosure would constitute an unwarranted invasion of
personal privacy in accordance with §87(2)(b).

As you are aware, §87(2)(a) pertains to records that "are
specifically exempted from disclosure by state or federal statute."
From my perspective, there is no statute that would exempt the
records in question from disclosure. As you indicated, §259-a of
the Executive Law requires that the Division of Parole maintain
certain kinds of records. Section 259-k provides in subdivision
(2) that the Board of Parole "shall make rules for the purpose of
maintaining the confidentiality of records, information contained
therein and information obtained in an official capacity by
officers, employees or members of the division of parole." The
Division's regulations, 9 NYCRR §8000.5(c), pertain to disclosure
of case records maintained by the Division. That provision confers
limited rights of access to case records and states in paragraph
(2)(ii) that "any record of the division of parole not made
available pursuant to this section shall not be released, except by
the chairman upon good cause shown." Section 8008.2(a) of the
regulations defines the phrase "case record" to include: "...any
memorandum, document or other writing pertaining to a present or
former inmate, parolee, conditional releasee or other releasee, and
maintained pursuant to sections 259-a(1)-(3) and 259-c(3) of the
Executive Law."

The statutes and regulations that preceded those cited above
and which pertained to the Board of Parole when it was part of the
Deaprtment of Correctional Services included essentially the same
direction. However, insofar as the regulations conflicted with the
Freedom of Information Law, they were found more than twenty years
ago to be invalid. Specifically, in Zuckerman v. Board of Parole,
the court found that:

"Section 221 of the Correction Law, entitled
'Records', requires the commissioner to keep
complete records 'of every person released on
parole or conditional release'. The statute
also requires the commissioner to make rules
as to the privacy of these records. Under the
authority of these two statutory mandates (7
NYCRR 5.1 [a], the following regulation was
promulgated: 'Department records. Any
department record not otherwise made available
by rule or regulation of the department shall
be confidential for the sole use of the
department.' (7 NYCRR 5.10). The minutes of
board meetings are not 'made available by rule
or regulation' and, therefore, Special Term
held that the minutes are private.

"It would seem clear that section 29 of the
Correction Law exempts from disclosure those
specifically enumerated statistics and,
further, that section 221 exempts those
records dealing with parolees. Minutes of
Parole Board meetings are not specifically
exempted by either of these statutes.
Applying the rule of ejusdem generis
(McKinney's Cons Laws of NY, Book 1, Statutes,
§239, subd b), the nonexclusive list contained
in subdivision 1 of section 29 of the
Correction Law could not be construed to
include those minutes.

"It would therefore appear that this
regulation, as applied to the minutes of
Parole Board meetings, is invalid on two
grounds. As shown above, the regulation makes
all records private initially and is not
limited solely to those categories of
information specifically set forth or included
by reasonable implication in the statutes.
Furthermore, by making all records initially
confidential in a broad and sweeping manner,
the regulation violates the clear intention of
the Freedom of Information Law (see Public
Officers Law, §85). It is established as a
general proposition that a regulation cannot
be inconsistent with a statutory scheme (see
e.g. Matter of Broadacres Skilled Nursing
Facility v. Ingraham, 51 AD2d 243, 245-246)...This conclusion is further reinforced
by the general rule that public disclosure
laws are to be liberally construed..." [53 AD
2d 405, 407(1976); emphasis supplied by the
court; see also Morris v. Martin, 440 NYS 2d
1026 (1982)].

In sum, based upon the direction provided judicially, I do not
believe that the records in question can be characterized as being
exempted from disclosure by statute or that the regulations serve
to enable the Department to withhold records that would otherwise
be available under the Freedom of Information Law.

Lastly, in my view, the minimal information that is sought
would not constitute an unwarranted invasion of personal privacy if
disclosed. The information sought does not include personal
details of inmates' or potential parolees' lives; it simply
identifies those who are or may be the subjects of appearances or
determinations to grant or deny parole. Those kinds of details are
accessible under other provisions of law. For instance, the
regulations promulgated by the Department of Correctional Services,
7 NYCRR §5.21(a), provide in relevant part that:

"Upon request by the news media, the following
information from an inmate record shall be
made available: name, age, birthdate,
birthplace, city of previous residence,
physical description, commitment information,
present facility in which housed, departmental
actions regarding confinement and release, and
when related to a newsworthy event,
institutional work assignments, general state
of health, nature of injury or critical
illness and cause of death."

Similarly, §500-f of the Correction Law, which pertains to county
jails, states that:

"Each keeper shall keep a daily record, to be
provided at the expense of the county, of the
commitments and discharges of all prisoners
delivered to his charge, which shall contain
the date of entrance, name, offense, term of
sentence, fine, age, sex, place of birth,
color, social relations, education, secular
and religious, for what any by whom committed,
how and when discharged, trade or occupation,
whether so employed when arrested, number of
previous convictions. The daily record shall
be a public record, and shall be kept
permanently in the office of the keeper."

In both of the provisions quoted above, "commitment" information is
required to be disclosed. In my view, the kinds of records sought
are analogous to that referenced in the provisions quoted above and
are not so intimate or personal that disclosure would constitute an
unwarranted invasion of personal privacy. Moreover, in an
Appellate Division decision concerning inmates that appears to be
consistent with my contention, information found to be available
was, in my opinion, more intimate or intrusive that sought by Mr.
O'Brien. In a case involving a request for videotapes made under
the Freedom of Information Law, it was unanimously found that:

"...an inmate in a State correctional facility
has no legitimate expectation of privacy from
any and all public portrayal of his person in
the facility...As Supreme Court noted, inmates
are well aware that their movements are
monitored by video recording in the
institution. Moreover, respondents'
regulations require disclosure to news media
of an inmate's 'name *** city of previous
residence, physical description, commitment
information, present facility in which housed,
departmental actions regarding confinement and
release' (7 NYCRR 5.21 [a]). Visual
depiction, alone, of an inmate's person in a
correctional facility hardly adds to such
disclosure" [Buffalo Broadcasting Company,
Inc. v. NYS Department of Correctional
Services, 155 AD 2d 106, 111-112 (1990)].

For the reasons described in the preceding commentary, I
believe that the information sought must be disclosed in accordance
with requests made appropriately under the Freedom of Information
Law. If you would like to discuss the matter, please feel free to
contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: John O'Brien