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March 21, 2000

FOIL-AO-12005

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

I have received your letter of February 4 in which you sought an advisory opinion
concerning rights of access to certain records maintained by the Department of Correctional
Services. You wrote that the "record at issue is a disciplinary decision rendered by a
Department employee with regard to an allegation of inmate misbehavior in a correctional
facility", and that "the decision at issue is a final finding of fact in the disciplinary proceeding
and the Department's findings of guilt or innocence of the charges."

You referred to an opinion rendered by this office in 1991 that you characterized as
"relevant, but not dispositive" of the matter. Having reviewed that opinion, I would agree
with your consideration of that opinion.

In this regard, I offer the following comments.

As suggested in the opinion to which you referred, two statutes, the Freedom of
Information Law and the Personal Privacy Protection Law (respectively Articles 6 and 6-A of
the Public Officers Law), are pertinent to the matter. Due to the language of those statutes,
they must be construed together and in relation to one another.

By way of background, the Freedom of Information Law includes within its coverage
all agency records and 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.

The Personal Privacy Protection Law deals in part with the disclosure of records or
personal information by state agencies concerning data subjects. A "data subject" is "any
natural person about whom personal information has been collected by an agency" [Personal
Privacy Protection Law, §92(3)]. "Personal information" is defined to mean "any
information concerning a data subject which, because of name, number, symbol, mark or
other identifier, can be used to identify that data subject" [§92(7)]. For purposes of that
statute, the term "record" is defined to mean "any item, collection or grouping of personal
information about a data subject which is maintained and is retrievable by use of the name or
other identifier of the data subject" [§92(9)].

With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that
"No agency may disclose any record or personal information", except in conjunction with a
series of exceptions that follow. One of those exceptions involves a situation in which a
record is "subject to article six of this chapter [the Freedom of Information Law], unless
disclosure of such information would constitute an unwarranted invasion of personal privacy
as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter." Section
89(2)(b) of the Freedom of Information Law includes examples of unwarranted invasions of
personal privacy, and §89(2-a) states that "Nothing in this article shall permit disclosure
which constitutes an unwarranted invasion of personal privacy as defined in subdivision two
of this section if such disclosure is prohibited under section ninety-six of this chapter."
Therefore, if a state agency cannot disclose records pursuant to §96 of the Personal Protection
Law, it is precluded from disclosing under the Freedom of Information Law.

I note that a similar issue was reviewed in Kavanagh v. Department of Correctional
Services (Supreme Court, Albany County, April 22, 1986). In brief, in that case, a district
attorney requested misbehavior reports and their final dispositions pertaining to particular
inmate, and it was held that the reports, which included allegations that were not
substantiated, could be withheld on the ground that disclosure would result in "personal
hardship" to the inmate and constitute "an unwarranted invasion of personal privacy"
pursuant to §89(2)(b)(iv) of the Freedom of Information Law.

On the other hand, however, if an inmate was found to have engaged in a violation or
misconduct, a final determination reflective of such a finding would, in my view, be
accessible. In numerous contexts, it has been advised that records relating to unsubstantiated
charges, complaints or allegations may be withheld to protect the privacy of the accused. But
when there is a determination indicating misconduct with respect to public employees (with
the exception of those employees subject to §50-a of the Civil Rights Law), licensees and
others, it has consistently been advised that the determination is accessible, for there is a
finding or admission of wrongdoing, and disclosure in those instances would constitute a
permissible rather than an unwarranted invasion of personal privacy.

The regulations promulgated by the Department of Correctional Services appear to
bolster such a conclusion. In 7 NYCRR §5.21(a), public rights of access are conferred with
respect to a variety of items relating to inmates, including commitment information and
"departmental actions regarding confinement and release." Frequently a departmental action
based on a finding of misconduct will result in placement in a special housing unit or in
solitary confinement. In Bensing v. LeFevre, the issue involved a request for a list of inmates
held in a special housing unit, "an area primarily used for housing inmates who have been
segregated from the general population for punitive reasons", and the court rejected
contentions under both the Freedom of Information and Personal Privacy Protection Laws
that disclosure would constitute an unwarranted invasion of personal privacy [506 NYS2d
822, 823 (1986)]. As such, the court confirmed that the names of those found to have
engaged in misconduct, as well as the sanction, placement in a segregated unit, must be
disclosed.

In sum, I believe that records involving unsubstantiated allegations may be withheld,
but that final determinations reflective findings of misconduct must be disclosed.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Anthony J. Annucci