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November 1, 2001

 

Mr. Steven Brantley
96-A-8069
Mid-State Correctional Facility
P.O. Box 2500
Marcy, NY 13403

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. Brantley:

I have received your letter in which you questioned "how much information the public" may
know about your criminal history and "how much the public can find out about sex charges"
concerning "levels 1, 2, and 3."

In this regard, 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 respect to criminal history records, the general repository of those records is the
Division of Criminal Justice Services. While the subject of a criminal history record may obtain
such record from the Division, it has been held that criminal history records maintained by that
agency are exempted from public disclosure pursuant to §87(2)(a) of the Freedom of Information
Law [Capital Newspapers v. Poklemba, Supreme Court, Albany County, April 6, 1989].
Nevertheless, if a person is convicted, the record of the conviction is generally available to the public
from the clerk of the court in which the proceeding was conducted.

It is also noted that while records relating to convictions may be available from the courts
or other sources, when charges are dismissed in favor of an accused, records relating to arrests that
did not result in convictions are generally sealed pursuant to §160.50 of the Criminal Procedure Law.

With respect to records related to "levels 1, 2 and 3" sex offenders, issues involving the
disclosure of those records are governed by the "Sex Offenders Registration Act" (hereafter "the
Act"), Article 6-C of the Correction Law, also know 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."
Although the Act does not specifically define the term "registry", subdivision (1) of §168-b of the
Correction Law states that:

"The division shall establish and maintain a file of individuals
required to register pursuant to the provisions of this article which
shall include the following information of each registrant:

(a) The sex offender's name, all aliases used, date of birth, sex, race,
height, weight, eye color, driver's license number, home address
and/or expected place of domicile.

(b) A photograph and set of fingerprints.

(c) A description of the offense for which the sex offender was
convicted, the date of conviction and the sentence imposed.

(d) Any other information deemed pertinent by the division."

Further, the first and last sentences of subdivision (2) provide 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 require that no information
included in the registry shall be made available except in the
furtherance of the provisions of this article."

Based on the foregoing, it is clear in my view that the information described in paragraphs
(a) through (d) ofsubdivision (1) comprises the content of and is the registry, and that information
contained in the registry may be made available only in accordance with the provisions of the Act.

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 to entities, such as school districts. Those entities "may disclose or further disseminate
such information at their discretion."

I hope that I have been of assistance.

Sincerely,

 

David M. Treacy
Assistant Director

DMT:jm