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December 28, 2000

FOIL-AO-12429

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 in which you raised several questions relating to access to records.

The first issue involves requests made under the "privacy act" for records of the Department
of Correctional Services. It is assumed that you have referred to the Personal Privacy Protection
Law. Although §95(1) of that statute generally grants rights of access to records to a person to whom
the records pertain, §95(7) provides that rights of access conferred by that statute "shall not apply
to public safety agency records". The phrase "public safety agency record" is defined by §92(8) to
mean:

"a record of the commission of corrections, the temporary state
commission of investigation, the department of correctional services,
the division for youth, the division of probation or the division of
state police or of any agency of component thereof whose primary
function is the enforcement of civil or criminal statutes if such record
pertains to investigation, law enforcement, confinement of persons in
correctional facilities or supervision of persons pursuant to criminal
conviction or court order, and any records maintained by the division
of criminal justice services pursuant to sections eight hundred thirty-
seven, eight hundred thirty seven-a, eight hundred thirty-seven-c,
eight hundred thirty-eight, eight hundred thirty-nine, eight hundred
forty-five, and eight hundred forty-five-a of the executive law."

Therefore, rights of access granted by the Personal Privacy Protection Law do not extend to records
of agencies or units within agencies whose primary functions involve investigation, law enforcement
or the confinement or persons in correctional facilities.

Second, you questioned the propriety of a denial or your request by the Department to review
your pre-sentence report. In this regard, although the Freedom of Information Law provides broad
rights of access to records, the first ground for denial, §87(2)(a), states that an agency may withhold
records or portions thereof that "...are specifically exempted from disclosure by state or federal
statute..." Relevant under the circumstances is §390.50 of the Criminal Procedure Law, which, in
my opinion represents the exclusive procedure concerning access to pre-sentence reports.

Section 390.50(1) of the Criminal Procedure Law states that:

"Any pre-sentence report or memorandum submitted to the court
pursuant to this article and any medical, psychiatric or social agency
report or other information gathered for the court by a probation
department, or submitted directly to the court, in connection with the
question of sentence is confidential and may not be made available to
any person or public or private agency except where specifically
required or permitted by statute or upon specific authorization of the
court. For purposes of this section, any report, memorandum or other
information forwarded to a probation department within this state is
governed by the same rules of confidentiality. Any person, public or
private agency receiving such material must retain it under the same
conditions of confidentiality as apply to the probation department that
made it available."

In addition, subdivision (2) of §390.50 states in part that: "The pre-sentence report shall be made
available by the court for examination and copying in connection with any appeal in the case..."

In view of the foregoing, I believe that a pre-sentence report may be made available only
upon the order of a court, and only under the circumstances described in §390.50 of the Criminal
Procedure Law. It is suggested that you review that statute.

The remaining issue relates to the receipt of requests by agencies. From my perspective, if
it can be proven that mail was delivered to and an agency received a request on a certain date, the
agency has five business days from that date to grant the request, deny access in writing, or
acknowledge the receipt of the request in writing that includes an approximate date when it can be
anticipated that a request be granted or denied [see Freedom of Information Law, §89(3)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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