November 23, 1999
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
I have received your letter of October 13, as well as the correspondence attached to it.
You have asked that I review a denial of your request made to the Montgomery County
Probation Department. You sought "[r]estitution dates and amounts for any and all payments
made by or on behalf of Brandie Caldwell to an Order of Restitution/Reparation dated
December 22 1998 by City Court Judge Howard M. Aison" and "a complete list of the
distribution of the money received from Ms. Caldwell by the Probation Department including
names, dates, and amounts."
In this regard, it is noted at the outset that the Freedom of Information Law pertains to
existing records and that §89(3) states in part that an agency is not required to create a record
in response to a request. Therefore, if, for example, the Department does not maintain a
"list" of monies distributed to an individual, it would not be required to prepare a list or a
new record on your behalf.
Second, even if the information sought has been prepared, it appears that a denial of
access would have been appropriate.
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.
With regard to probation records, §243(2) of the Executive Law states in relevant part
that the director of the Division of Probation and Correctional Alternatives has the authority
to promulgate regulations and that "[s]uch rules and regulations shall be binding upon all
counties and eligible programs...and when duly adopted shall have the force and effect of
law". Section 348.1(b) of the Division's regulations states that:
"(b) Cumulative case record is a single case file containing all
information with respect to a case from its inception through its
conclusion. All records developed and/or received by the
probation department and which are related to the carrying out
of authorized probation functions and services are considered
probation records for the purpose of retention and destruction.
Reports and other records material developed by the probation
department and transmitted to the courts of other agencies
become the responsibility of the court or other agencies as
Further, §348.4(k) of the regulations provides that: "Case records shall be accessible, in
whole or in part, only to those authorized by law or court order."
Further, §87(2)(b) of the Freedom of Information Law permits an agency to withhold
records insofar as disclosure would result in "an unwarranted invasion of personal privacy."
It appears that the cited provision would also authorized the Department to deny access.
I hope that the foregoing serves to clarify your understanding of the matter and that I
have been of assistance.
Robert J. Freeman
cc: Kathi J. Pallotta
Helen A. Bartone