NY.gov Portal State Agency Listing

 

December 7, 1998

 

Ms. Vanessa M. Sheehan
Guercio & Guercio
77 Conklin Street
Farmingdale, NY l1735

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 Ms. Sheehan:

I have received your letter of November 2, as well as the correspondence attached to
it. You have sought clarification of an opinion rendered approximately a year ago relating
to the Sex Offender Registration Act ("the Act"), which is also known as "Megan's Law."

You wrote that "[a] discrepancy has arisen in [y]our office as to whether sex offender
registry information received by a school district through a local police department as an
intermediary is subject to the Freedom of Information Law (FOIL)." You added that it is
your understanding that "only registry information obtained from a local police department
is not subject to FOIL", and you asked that I "verify" your interpretation.

I am in general agreement with your position. Although the Act does not specifically
define the term "registry", subdivision (1) of §168-b of the Correction Law states that:

"The division shall establish and maintain a file of individuals
required to register pursuant to the provisions of this article
which shall include the following information of each
registrant:

(a) The sex offender's name, all aliases used, date of birth, sex,
race, height, weight, eye color, driver's license number, home
address and/or expected place of domicile.

(b) A photograph and set of fingerprints.

(c) A description of the offense for which the sex offender was
convicted, the date of conviction and the sentence imposed.

(d) Any other information deemed pertinent by the division."

Further, the first and last sentences of subdivision (2) provide 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 require that
no information included in the registry shall be made available
except in the furtherance of the provisions of this article."

Based on the foregoing, it is clear in my view that the information described in
paragraphs (a) through (d) of subdivision (1) comprises the content of and is the registry, and
that information contained in the registry may be made available only in accordance with the
provisions of the Act.

To reiterate a point offered in the earlier opinion, 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), a 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. Contrarily, if records are acquired by a school district from a source other than
the registry, those records would, in my opinion, be subject to the Freedom of Information
Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm