October 13, 1999
Mr. Benjamin Brooks
Hudson Correctional Facility
P.O. Box 576
Hudson, NY 12534
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
Dear Mr. Brooks:
I have received you letter of August 19 in which you asked that I review
correspondence concerning your efforts in acquiring information from the Division of Parole.
Citing the Freedom of Information Law, you asked that the Division of Parole
produce records indicating the Division's "legal and statutorily binding definition of what
constitutes "reasonable probability", "live and remain at liberty without violating the law",
"incompatible with the welfare of society", and similar phrases. In a letter addressed to you
by Ann C. Crowell, she indicated that "your request is not a proper request under the
Freedom of Information Law", and I agree with her contention.
In this regard, it is emphasized that the Freedom of Information Law pertains to
existing records and that §89(3) of that statute provides in relevant part that an agency is not
required to create a record in response to a request for information. I would conjecture that
the Division of Parole has not prepared or adopted "legal and statutorily binding" definitions
of the phrases to which you referred. If that is so, the request would not involve existing
records, and the Freedom of Information Law would not apply.
Similarly, your request for a "copy of the parole board commissioner's statutory
authority to determine what programs an inmate should take before becoming eligible for
release consideration" is not, in my view, a request for a record. In essence, it is a request
for an interpretation of law requiring a judgment. Any number of provisions might be
applicable, and a disclosure of some of them, based on one's knowledge, may be incomplete
due to an absence of expertise regarding the content and interpretation of each such law.
Further, two people, even or perhaps especially two attorneys, might differ as to the
applicability of a given provision of law. In contrast, if a request is made, for example, for
"section 500 of the Correction Law", no interpretation or judgment is necessary, for sections
of the law appear numerically and can readily be identified. That kind of request, in my
opinion would involve a portion of a record that must be disclosed. Again, a request for laws
that might be applicable is not, in my view, a request for a record as envisioned by the
Freedom of Information Law.
I hope that the foregoing serves to clarify misunderstandings and that I have been of
Robert J. Freeman
cc: Ann C. Crowell