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August 18, 1999

 

 

Mr. Richard G. Tarbell
264 East Main Street
Port Jervis, NY 12771

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. Tarbell:

I have received your letters of June 18 and June 29. Please note the address of this office.
As you requested, enclosed is copy of "Your Right to Know", which describes the Freedom of
Information and Open Meetings Laws.

According to your initial letter, you "sent an FOI request to the City of Port Jervis, NY
for the number of sexual offenders registered with the City..." The City denied the request, and
you have questioned whether you have a right to the information sought.

In this regard, having conferred with officials of the Department of Law and the Division
of Criminal Justice Services, I believe that rights of access are not governed by the Freedom of
Information Law, but rather by the "Sex Offender Registration Act" (hereafter "the Act"), Article
6-C of the Correction Law, also known as "Megan's Law."

By way of brief background, subdivision (1) of §168-b of the Act directs the Division of
Criminal Justice Services to "establish and maintain a file of individuals required to register"
under the Act and includes guidelines concerning the content of what is characterized as the
"registry." Subdivision (2) states 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
accept files from any regional or national registry of sex offenders and shall make such available
when requested pursuant to the provisions of this article. 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" (emphasis added).
Based on the sentence highlighted above, it is the position of both the Department of Law and
the Division of Criminal Justice Services, and I concur, that information contained in the registry
is to be disclosed only pursuant to the provisions of the Act, "only in the furtherance of the
provisions of this article", which, again, is Article 6-C of the Correction Law.

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), the 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.

Certain aspects of the contents of the registry are forwarded to local government agencies
in conjunction with notification requirements imposed upon the "Board of Examiners of Sex
Offenders" pursuant to §168-l of the Act. In subdivision (6) of that provision, reference is made
to "three levels of notification...depending upon the degree of the risk of re-offense by the sex
offender."

Paragraph (a) of §168-l(6) provides that "[i]f the risk of repeat offense is low, a level one
designation shall be given to such sex offender." In that instance, certain law enforcement
agencies are notified. Paragraph (b) states that "[i]f the risk of repeat offense is moderate, a level
two designation shall be given..." Pursuant to paragraph (c), "[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..." In both of those instances, local
law enforcement agencies are authorized to disclose various kinds of information pertaining to
sex offenders. Those entities "may disclose or further disseminate such information at their
discretion." As such, there appears to be no obligation to disclose or any public right of access.

It is emphasized that if an agency acquires records regarding a sex offender (or any other
person convicted of a crime) from a source other than the registry, it is my view that those
records are subject to the Freedom of Information Law. For example, if a police department
obtained a copy of a mugshot of a person convicted of a crime independent of the requirements
of the Act, such a record would be available under the Freedom of Information Law [see Planned
Parenthood of Westchester, Inc. v Town Board of Town of Greenburgh, 587 NYS2d 461
(1992)].

In sum, information contained within the registry that is disseminated pursuant to the Act
to a local law enforcement agency may be disclosed by the agency in its discretion. Records
acquired by an agency from a source other than the registry are subject to rights conferred by the
Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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