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July 16, 1997

 

 

 

Mr. Gregory Pought
85-A-3215
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929

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 Mr. Pought:

As you are aware, I have received your letter of June 17.

You referred to a request for records directed to the New York
City Police Department and a denial of access on the basis of
§87(2)(a) of the Freedom of Information Law and §50-b of the Civil
Rights Law. You have contended that the denial was improper, for
§50-b(2)(a) provides that the confidentiality restrictions imposed
by subdivision (1) of §50-b do not apply to "[a]ny person charged
with the commission of a sex offense...against the same victim."

From my perspective, the Freedom of Information Law does not
apply, and §50-b of the Civil Rights Law would not confer rights of
access to the records sought, even though you may be the person
charged. As I understand §50-b, although the Police Department may
not be prohibited from disclosing records falling within the
coverage of that statute to you, it is not obliged to do so, for
that statute does not confer a right of access.

Subdivision (1) of §50-b states that:

"The identity of any victim of a sex offense,
as defined in article one hundred thirty or
§255.25 of the penal law, shall be
confidential. No report, paper, picture,
photograph, court file or other documents, in
the custody or possession of any public
officer or employee, which identifies such
victim shall be made available for public
inspection. No such public officer or
employee shall disclose any portion of any
police report, court file, or other document,
which tends to identify such a victim except
as provided in subdivision two of this
section."

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 exempts records identifiable to a victim of a sex
offense from disclosure. Consequently, the Freedom of Information
Law in my view provides no rights of access to those records. Any
authority to disclose or obtain the records in question would be
based on the direction provided by the ensuing provisions of §50-b.

In this regard, the introductory language of subdivision (2)
provides that "[t]he provisions of subdivision one of this section
shall not be construed to prohibit disclosure of information to: a.
Any person charged with the commission of a sex offense..." While
the Department is not forbidden from disclosing records subject to
§50-b to a person charged, I do not believe that §50-b creates a
right of access on behalf of such person. Further, subdivision (3)
states in relevant part that "The court having jurisdiction over
the alleged sex offense may order any restrictions upon disclosure
authorized in subdivision two of this section..."

In sum, it is my view that issues involving the disclosure of
the records in question would be governed by §50-b of the Civil
Rights Law, rather than the Freedom of Information Law. That being
so, it is suggested that you discuss the matter with your attorney.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Susan Petito