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June 14, 1999

 

Mr. Charles Doyen
88-C-0074
Collins Correctional Facility
P.O. Box 340
Collins, NY 14034-0340

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. Doyen:

I have received your letter of May 7, as well as the materials attached to it. You have
raised a series of questions relating to your requests for records.

First, you asked whether, "as the person charged [and convicted] of a sex offense",
you are "entitled to access of records, relative to [your] arrest and conviction, from New
York State Agency's under the provision of the New York State Freedom of Information
Law and specifically, under the exceptions contained in Section 50-b(2)(a) of the Civil Rights
Law."

From my perspective, the Freedom of Information Law does not apply, and §50-b of
the Civil Rights Law would not confer rights of access to the records sought, even though
you may be the person charged. As I understand §50-b, although an agency may not be
prohibited from disclosing records falling within the coverage of that statute to you, it is not
obliged to do so, for that statute does not confer a right of access.

Subdivision (1) of §50-b states that:

"The identity of any victim of a sex offense, as defined in
article one hundred thirty or §255.25 of the penal law, shall be
confidential. No report, paper, picture, photograph, court file
or other documents, in the custody or possession of any public
officer or employee, which identifies such victim shall be made
available for public inspection. No such public officer or
employee shall disclose any portion of any police report, court
file, or other document, which tends to identify such a victim
except as provided in subdivision two of this section."
The initial ground for denial in the Freedom of Information Law, §87(2)(a), pertains to
records that "are specifically exempted from disclosure by state or federal statute." Section
50-b of the Civil Rights Law exempts records identifiable to a victim of a sex offense from
disclosure. Consequently, the Freedom of Information Law in my view provides no rights of
access to those records. Any authority to disclose or obtain the records in question would
be based on the direction provided by the ensuing provisions of §50-b.

In this regard, the introductory language of subdivision (2) provides that "[t]he
provisions of subdivision one of this section shall not be construed to prohibit disclosure of
information to: a. Any person charged with the commission of a sex offense..." While an
agency is not forbidden from disclosing records subject to §50-b to a person charged, I do
not believe that §50-b creates a right of access on behalf of such person. Further, subdivision
(3) states in relevant part that "The court having jurisdiction over the alleged sex offense may
order any restrictions upon disclosure authorized in subdivision two of this section..."

In sum, it is my view that issues involving the disclosure of the records in question
would be governed by §50-b of the Civil Rights Law, rather than the Freedom of Information
Law.

Next, you indicated that requests for records directed to the Ontario County District
Attorney and the Supreme Court have not been answered. In this regard, the Freedom of
Information Law excludes the courts and court records from its coverage. This is not suggest
that court records might not be available, but rather that access is governed by different
provisions of law (see e.g., Judiciary Law, §255).

When the Freedom of Information Law is applicable, as in the case of a records of the
office of a district attorney, that statute provides direction concerning the time and manner
in which an agency must respond to requests. Specifically, §89(3) of the Freedom of
Information Law states in part that:

"Each entity subject to the provisions of this article, within
five business days of the receipt of a written request for a
record reasonably described, shall make such record available
to the person requesting it, deny such request in writing or
furnish a written acknowledgement of the receipt of such
request and a statement of the approximate date when such
request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given
within five business days, or if an agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my opinion, be considered
to have been constructively denied. In such a circumstance, I believe that the denial may be
appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision
states in relevant part that:

"...any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive, or
governing body, who shall within ten business days of the
receipt of such appeal fully explain in writing to the person
requesting the record the reasons for further denial, or provide
access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not
rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of
the Freedom of Information Law, the appellant has exhausted his or her administrative
remedies and may initiate a challenge to a constructive denial of access under Article 78 of
the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774
(1982)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Records Access Officer, Office of the Ontario County District Attorney