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February 19, 1999

Mr. Willie Kearse
93-A-8665
Coxsackie, NY 12051

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. Kearse:

I have received your letter of February 2 in which you sought guidance concerning
your ability to obtain your "institutional visiting list".

In this regard, I offer the following comments.

First, the regulations promulgated by the Department of Correctional Services indicate
that a request for records kept at a facility may be made to the facility superintendent or his
designee.

Second, if a list is maintained that pertains only to your visitors, I believe that it would
be accessible. 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. From my perspective, if such a list exists, none of the
grounds for denial would be applicable.
If, however, no separate visitors list is maintained with respect to each inmate, rights
of access may be different. For instance, if a visitor's log or similar documentation is kept in
plain sight and can be viewed by any person, and if the staff at the facility have the ability to
locate portions of the log of your interest, I believe that those portions of the log would be
available. If such records are not kept in plain sight and cannot ordinarily be viewed, it is my
opinion that those portions of the log pertaining to persons other than yourself could be
withheld on the ground that disclosure would constitute an unwarranted invasion of personal
privacy. In short, the identities of those with whom a person associates is, in my view,
nobody's business.

A potential issue involves the requirement imposed by §89(3) of the Freedom of
Information Law that an applicant "reasonably describe" the records sought. In considering
that standard, the State's highest court has found that to meet the standard, the terms of a
request must be adequate to enable the agency to locate the records, and that an agency must
"establish that 'the descriptions were insufficient for purposes of locating and identifying the
documents sought'...before denying a FOIL request for reasons of overbreadth" [Konigsberg
v. Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the
request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to
the nature - or even the existence - of their indexing system:
whether the Department's files were indexed in a manner that
would enable the identification and location of documents in
their possession (cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192 [Bazelon, J.]
[plausible claim of nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3), may be presented
where agency's indexing system was such that 'the requested
documents could not be identified by retracing a path already
trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of
the agency']" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the
Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an
agency's filing or record-keeping systems. In Konigsberg, it appears that the agency was able
to locate the records on the basis of an inmate's name and identification number.

I am unaware of the means by which a visitors log, if it exists, is kept or compiled.
If an inmate's name or other identifier can be used to locate records or portions of records
that would identify the inmate's visitors, it would likely be easy to retrieve that information,
and the request would reasonably describe the records. On the other hand, if there are
chronological logs of visitors and each page would have to be reviewed in an effort to identify
visitors of a particular inmate, I do not believe that agency staff would be required to engage
in such an extensive search.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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