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December 9, 1998

Mr. Daniel H. Hays
National Underwriter
43-47 Newark Street
Hoboken, NJ 07030

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. Hays:

As you are aware, I have received your letter of November 10, as well as a letter
addressed to Mr. Sidney B. Glaser, Associate Counsel and Records Access Officer for the
Department of Insurance, in which the Metropolitan Life Insurance Company ("MetLife") and
the individual employee named in the record sought urged the Department to continue to
deny access to documentation indicating that the employee was convicted of a "crime of
dishonesty or breach of trust." In an advisory opinion dated October 6, it was advised, in
brief, that intimate personal information might justifiably be withheld, but that the identity of
the employee and the crime for which he or she was convicted must be disclosed.

I continue to believe that those aspects of the materials are accessible to the public.

First, a record indicating that an individual has been found to have engaged in a
violation of law, in my opinion, would not, if disclosed constitute "an unwarranted invasion
of personal privacy" [see Freedom of Information Law, §87(2)(b)]. Further, I believe that
the United States Supreme Court decision repeatedly cited by the attorneys for MetLife has
been misinterpreted and in this factual context would support disclosure.

U.S. Department of Justice v. Reporters Committee for Freedom of the Press [489
U.S. 749 (1989)] involved a request for "rap sheets", the criminal history records including
reference to arrests and convictions, relating certain individuals. The records sought were
located within a database maintained by the FBI. The Supreme Court acknowledged that
some of the contents of rap sheets are frequently available, stating that: "Arrests, indictments,
convictions, and sentence are public events that are usually documented in court records. In
addition, if a person's entire criminal history transpired in a single jurisdiction, all of the
elements of his or her rap sheet may be available upon request in that jurisdiction."
Nevertheless, the Court also recognized that if those events did not occur in a single
jurisdiction, it may be difficult if not impossible to find records comprising the elements of
one's criminal history, stating that "Although much rap-sheet information is a matter of public
record, the availability and dissemination of the actual rap sheet to the public is limited." That
being so, the Court sought to balance the privacy interest in maintaining the "practical
obscurity" of the records against the public interest in disclosure, stating that

"the issue here is whether the compilation of otherwise hard-
to-obtain information alters the privacy interest implicated by
disclosure of that information. Plainly there is a vast
difference between the public records that might be found
after a diligent search of courthouse files, county archives, and
local police stations throughout the country and a
computerized summary located in a single clearinghouse of
information."

In essence, it appears that the Supreme Court found that if the elements of a record
are public but difficult to find, and if those elements are maintained in a computerized
government "clearinghouse" of "compiled computerized information", the federal Freedom
of Information Act authorizes a federal agency to withhold the data on the ground that
disclosure would constitute an unwarranted invasion of personal privacy.

Notwithstanding my respect for the Supreme Court, it is difficult in my opinion to
justify a conclusion that an item of public information available from one public source, such
as a courthouse or police station would, if disclosed result in an unwarranted invasion of
privacy if it is sought from another public source that can make the record readily available.
From my perspective, it is the nature of the public information that should determine whether
or the extent to which it must be disclosed under the New York Freedom of Information Law,
not the ease or difficulty of obtaining it. While the attorney's for MetLife essentially dismissed
the holding in Capital Newspapers v. Poklemba (Supreme Court, Albany County, April 6,
1989), it is the only state decision that focused in an any detail on the "practical obscurity"
or "computerized clearinghouse" concepts referenced by the Supreme Court. To reiterate
that aspect of the holding (which was rendered by Judge Kahn, who is now a U.S. District
Court judge):

"...petitioner is correct when it asserts that the transmittal of
an otherwise publicly available document to a centralized
facility for inclusion in a government computer bank does not
per se render it immune from disclosure. However, the issue
is not whether the records under the control of DCJS should
be released, but rather whether the provisions of FOIL and the
Executive Law, as presently constituted, mandate the result
sought by petitioner.

"Certainly, the Legislature has the authority to provide for
public access from a centralized location. It is equally clear
that, unless otherwise sealed, a conviction record is a public
document. Much has been said about potential abuses, given
the ease with which these records may be obtained if the
petition is sustained. Such fears are not determinative
however. To argue that a criminal conviction obtained in a
public proceeding in an open court system suddenly should be
clothed with secrecy merely because an individual doesn't have
to struggle to obtain it, makes a mockery of the right of public
access. To suggest that public disclosure of conviction
records is available only when it is through a difficult and
time-consuming search of individual courthouse files or in
local police stations, when the exact same information might
be freely available if housed within a centralized computer
bank, would be to create an irrational burden. Resolution of
the question should not be resolved by how hard it is to
discover the information sought. However, as aforesaid, the
issue is not whether the information should be available, but
rather, whether the Division of Criminal Justice Services has
been statutorily directed to guard against public disclosure,
thereby exempting it from the provision of FOIL" (emphasis
added by the court).

As such, the court determined the issue by finding that the records maintained by DCJS were
exempted from disclosure by statute, not because disclosure would constitute an unwarranted
invasion of personal privacy. Additionally, the court inferred that conviction records are
generally available from the courts in which proceedings resulted in convictions were
conducted "or in local police stations."

The Court of Appeals, the state's highest court, inferentially reached the same
conclusion and recognized that not all elements of a rap sheet are accessible to the public.
In New York and many other jurisdictions, there is a distinction in terms of rights of access
between those situations in which a person has been found to have engaged in a violation of
law, and those in which charges against an individual have been dismissed in his or her favor.
In the latter case, records relating to an event that did not result in a conviction ordinarily
become sealed pursuant to §160.50 and perhaps other provisions of the Criminal Procedure
Law. However, if it is determined that a person has engaged in a violation, the records would
be available from the courts in which the proceedings occurred. In this regard, the Court of
Appeals determined in 1984 that traffic tickets issued and lists of violations of the Vehicle and
Traffic Law compiled by the State Police during a certain period must be disclosed by an
agency pursuant to the Freedom of Information Law, unless charges were dismissed and the
records sealed pursuant to provisions of the Criminal Procedure Law [see Johnson
Newspaper Corp. v. Stainkamp, 61 NY2d 958). In short, while identifying details pertaining
to person whose charges were dismissed likely would not be accessible, the records indicating
convictions were found to be a matter of public record.

Perhaps just as significant, the Court of Appeals has cited an aspect of the New York
Freedom of Information Law that is not present in the federal Act: a strong statement of
legislative intent. Section 84 of the New York statute states that "it is incumbent upon the
state and its localities to extend public accountability wherever and whenever feasible", and
the Court of Appeals has asserted that:

"...the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on
goals as broad as the achievement of a more informed
electorate and a more responsible and responsive officialdom.
By their very nature such objectives cannot hope to be
attained unless the measures taken to bring them about
permeate the body politic to a point where they become the
rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore
merely punctuates with explicitness what in any event is
implicit" [Westchester News v. Kimball, 50 NY2d 575, 579
(1980)].

In my view, based on the language of the law and precedent, the principles involving the
practical obscurity of information stored within a computerized clearinghouse announced by
the Supreme Court have not and would not be adopted in New York.

Another facet of the Reporters Committee decision which would be irrelevant to the
interpretation of the state statute but which represents a misinterpretation of law by MetLife's
attorneys involves the Supreme Court's finding that the application of the federal Act's privacy
exception "must turn on the nature of the requested document and its relationship to 'the basic
purpose of the Freedom of Information Act to open agency action to the light of public
scrutiny'." The Court added that:

"Official information that sheds light on an agency's
performance of its statutory duties falls squarely within that
statutory purpose. That purpose, however, is not fostered by
disclosure of information about private citizens that is
accumulated in various governmental files but that reveals
little or nothing about an agency's own conduct. In this case -
and presumably in the typical case in which one private citizen
is seeking information about another - the requester does not
intend to discover anything about the conduct of the agency
that has possession of the requested records. Indeed, response
to this request would not shed any light on the conduct of any
Government agency or official."

First, as stated by the Court of Appeals,

"FOIL does not require that the party requesting records make
any showing of need, good faith or legitimate purpose' while
its purpose may be to shed light on government decision-
making, its ambit is not confined to records actually used in
the decision-making process. (Matter of Westchester
Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full
disclosure by public agencies is, under FOIL, a public right
and in the public interest, irrespective of the status or need of
the person making the request' [Farbman v. New York City
Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)]."

Based on the foregoing, whether a record sheds light on an agency's activities is not pertinent
in determining rights of access; the only question under the state law involves the extent, if
any, to which a basis for denial appearing in §87(2) could justifiably be asserted.

Second and more importantly, disclosure of the record sought in this instance, in my
opinion, would clearly shed light on the activities of the Insurance Department, a regulatory
agency, and enhance its accountability to the public. As I understand the federal law that
serves as the basis of your request, 18 USC §§1033 and 1034, individuals convicted of a
"crime of dishonesty or breach of trust" cannot work in the insurance industry, unless they
receive a signed consent to do so from a state insurance commissioner. Therefore, for a
person so convicted to work in the insurance industry in New York, the Superintendent of
Insurance must make a determination to grant or deny permission to so. Whether a
Superintendent grants or denies permission to a convicted person to work in the insurance
industry clearly relates to the performance of the official duties of a high government official
and "sheds light" on the functioning and operation of the Insurance Department.

Third, this is not a situation in which an applicant such as yourself is asking an agency
to retrieve information from a large database, information that happens to be stored, for
whatever the reason, by an agency. On the contrary, the record is likely one of few
maintained by the Department that deals with a request by a convicted person to work in the
insurance industry in New York.

In short, I do not believe that MetLife's reliance on the Reporters Committee decision
or the other decisions relating to the protection of the privacy of the person in question would
justify a denial of access. If anything, the holding in that decision and the others that I have
cited lead to the conclusion that the record, with the qualifications expressed earlier, must be
disclosed.

With respect to the other argument, which relates to the "trade secret" exception
appearing in §87(2)(d) of the Freedom of Information Law, in addition to the points offered
in the opinion of October 6, in general, I believe that the exceptions in both the New York
and the federal statutes pertain to what might be characterized as "commercial information".
From my perspective, the record sought could hardly be considered to be commercial
information as that phrase is generally and typically understood and used. Stated differently,
I do not believe that a record indicating that an individual has been convicted of certain crimes
constitutes what could reasonably be described as commercial information or a trade secret.
Does that kind of record, by its nature, have any commercial value? Is it any way analogous
to a book list or pricing information, detailed and current financial information, a company's
business plans or strategy, a computer model, a process of manufacturing, a formula or a
device?

Lastly, you enclosed copies of records obtained from the Insurance Department in
which the Department gave consent to work in the insurance industry to persons who had
been convicted of crimes. In those instances, it appears that the Department did not consider
the records to be exempt from disclosure. Further, it also appears that the insurance
companies that employ the individuals who have been convicted did not contend that the
information falls within the scope of §87(2)(d), or that the Department rejected those
contentions. As such, there is precedent for the Department disclosing the same kind of
records that you are seeking or for suggesting that other insurance companies do not consider
those records to be shielded from disclosure to the public.

In sum, for the reasons expressed above and in the earlier opinion, I believe that the
information that you are seeking, which is contained in a record maintained by the Insurance
Department, must be disclosed.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Sidney B. Glaser
Martin Frederic Evans