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January 15, 1999

Inv. J. M. Cassalia
Police Investigator
Town of Manlius Police Dept.
1 Elmbrook Drive West
Manlius, NY 13014

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 Investigator Cassalia:

I have received your letter of December 23. You have questioned whether you must
disclose written requests made to gain access to the "level three sub-directory" maintained
pursuant to the Sex Offender Registration Act, which is also known as "Megan's Law." You
referred to a requirement in the Act that written requests include "biographical data, and a
specific reason for viewing."

By way of background, pursuant to §168-l(6)(c) of the Act, "[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 to such sex offender."
That provision describes information to be maintained about level three sex offenders,
indicates that the information "shall also be provided in the subdirectory established" by the
Act, and that, "notwithstanding any other provision of law, such information shall, upon
request, be made available to the public."

When there is a request for the subdirectory, which is distributed to police
departments pursuant to §168-q of the Act, that provision states that those departments "shall
require that a person in writing express a purpose in order to have access to the subdirectory
and such department shall maintain these requests." Based on the foregoing, while there is
no requirement that a police department obtain "biographical data" from a person seeking
access to the subdirectory, the Act requires that a request be made in writing indicating the
reason for the request. Having spoken with a representative of the Division of Criminal
Justice Services, the reason for a request need not be specific. Personal interest, curiosity,
or, in the case of the news media, news gathering, would be sufficient expressions of purposes
for gaining access.

With respect to your question, I believe that identifying details pertaining to persons
who seek access to the subdirectory may be withheld.

As a general matter, 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 grounds for denial appearing in §87(2)(a)
through (i) of the Law.

In view of the content of the subdirectory, it is likely in my view that many of those
submitting requests would be victims of a sex offense, family members related to those
persons, women, and parents of children who may want to ascertain whether sex offenders
reside near their residences, schools or other locations that members of the public may
frequent. In short, from my perspective, it is simply nobody's business that an individual has
expressed an interest in the subdirectory, irrespective of that person's reason for gaining
access.

In conjunction with the foregoing, two of the grounds for denial are pertinent.
Section 87(2)(b) permits an agency to withhold records insofar as disclosure would constitute
"an unwarranted invasion of personal privacy"; §87(2)(f) authorizes an agency to deny access
to records to the extent that disclosure "would endanger the life or safety of any person." I
believe that either of those provisions would justify a police department's denial of access to
those portions of written requests that might identify applicants for the subdirectory.

I note that when records are accessible under the Freedom of Information Law, it has
been held that they must be made equally available to any person, regardless of one's status
or interest [see M.Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY 2d
75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165
(1976)]. That being so, if the identities of those requesting the subdirectory were accessible,
they would be available to any person, including level three sex offenders. That being so,
again, it is my opinion that names or other identifying details regarding persons who submit
requests for the subdirectory may be withheld.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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