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December 29, 1997

Ms. Nancy G. Groenwegen
Counsel for Policy and Employee Relations
NYS School Boards Association
119 Washington Avenue
Albany, NY 12210-2292

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, unless otherwise indicated.

Dear Ms. Groenwegen:

I have received your letter of November 20. You wrote that the NYS
School Boards Association "is in the process of reviewing [its] suggested
policy concerning the dissemination of information received by school districts
from law enforcement authorities on paroled sex offenders." You have sought
the Committee's position on the matter.

You referred to earlier opinions rendered on the subject by this office.
From my perspective, they are no longer fully valid due to the enactment of
the "Sex Offender Registration Act" (hereafter "the Act"), Article 6-C of the
Correction Law, also known as "Megan's Law." Prior to the enactment of the
Act, it was my view that the Freedom of Information Law governed public
rights of access and the obligations of agencies, including school districts.
Based on discussions with Christine Morrison, the assistant attorney general
who has been involved in the implementation of and litigation commenced
under the Act, as well as the opinion of the former director of the Division of
Criminal Justice Services, the Freedom of Information Law does not govern
with respect to records generated pursuant to the Act; rather, issues involving
the 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 I
concur, 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.

Certain aspects of the contents of the registry are forwarded to local
government agencies in conjunction with notification requirements imposed
upon the "Board of Examiners of Sex Offenders" pursuant to §168-l of the
Act. In subdivision (6) of that provision, reference is made to "three levels of
notification...depending upon the degree of the risk of re-offense by the sex
offender."

Paragraph (a) of §168-l(6) provides that "[i]f the risk of repeat offense
is low, a level one designation shall be given to such sex offender." In that
instance, certain law enforcement agencies are notified. Since there is no
statement in that provision regarding the further dissemination of information
concerning the level one offender, it is assumed that school districts will not
receive that category of information within the registry.

Paragraph (b) states that "[i]f the risk of repeat offense is moderate,
a level two designation shall be given..." Pursuant to paragraph (c), "[i]f the
risk of repeat offense is high and there exists a threat to the public safety, such
sex offender shall be deemed a 'sexually violent predator' and a level three
designation shall be given..." In both of those instances, local law
enforcement agencies are authorized to disclose various kinds of information
pertaining to sex offenders to entities, such as school districts. Those entities
"may disclose or further disseminate such information at their discretion."
Therefore, a school district in receipt of information derived from the registry
that has been supplied by a law enforcement agency has the discretionary
authority to disseminate any or all of the information.

It is emphasized that if a school district acquires records regarding a
sex offender (or any other person convicted of a crime) from a source other
than the registry, it is my view and that of Assistant Attorney General
Morrison that those records are subject to the Freedom of Information Law.
For example, if a school district obtained a copy of a mugshot from a local
police department or a court that is maintained independent of the
requirements of the Act, such a record would be available from the District
under the Freedom of Information Law [see Planned Parenthood of
Westchester, Inc. v Town Board of Town of Greenburgh, 587 NYS2d 461
(1992)].

In sum, information contained within the registry that is disseminated
pursuant to the Act to a school district may be disclosed by the district in its
discretion. Records acquired by a district from a source other than the
registry are subject to rights conferred by the Freedom of Information Law.

I hope that I have been of assistance. Should any further questions
arise, please feel free to contact me.

Sincerely,



Robert J. Freeman
Executive Director

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