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FOIL-AO-13737

December 2, 2002

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 sought assistance in obtaining records relating to
your conviction regarding a sex offense from the Ontario County Clerk.

You wrote that you were denied access to records based on Civil Rights Law §50-b and
contend that as the "person charged with the commission of a sex offense," you are entitled to the
records.

From my perspective, the Freedom of Information Law does not apply, and §50-b of the Civil
Rights Law would prohibit disclosure of records which identify a victim of a sex offense even
though you previously may have been the person charged.

Subdivision (1) of §50-b states that:

"The identity of any victim of a sex offense, as defined in article one
hundred thirty or §255.25 of the penal law, shall be confidential. No
report, paper, picture, photograph, court file or other documents, in
the custody or possession of any public officer or employee, which
identifies such victim shall be made available for public inspection.
No such public officer or employee shall disclose any portion of any
police report, court file, or other document, which tends to identify
such a victim except as provided in subdivision two of this section."
The initial ground for denial in the Freedom of Information Law, §87(2)(a), pertains to records that
"are specifically exempted from disclosure by state or federal statute." Section 50-b of the Civil
Rights Law exempts records identifiable to a victim of a sex offense from disclosure. Consequently,
the Freedom of Information Law in my view provides no rights of access to those records. Any
authority to disclose or obtain the records in question would be based on the direction provided by
the ensuing provisions of §50-b.

In this regard, the introductory language of subdivision (2) provides that "[t]he provisions
of subdivision one of this section shall not be construed to prohibit disclosure of information to: a.
Any person charged with the commission of a sex offense..." While an agency is not forbidden from
disclosing records subject to §50-b to a person charged, I do not believe that §50-b creates a right
of access on behalf of such person. Further, subdivision (3) states in relevant part that "The court
having jurisdiction over the alleged sex offense may order any restrictions upon disclosure
authorized in subdivision two of this section..."

The state's highest court has held that the exception in §50-b authorizing disclosure to
persons "charged" with a sex offense did not apply to those seeking post-conviction relief.
Consequently, agencies and courts were prohibited from disclosing records that had been sought by
a convicted sex offender insofar as the records identified victims of sex offenses [Fappiano v. New
York City Police Department, 724 NYS2d, 685, 95 NY2d 738 (2001)].

In consideration of the foregoing, in my opinion, §50-b would prohibit the county clerk from
providing you with records that identify the victim of a sex offense.

I hope that I have been of assistance.

Sincerely,

David Treacy
Assistant Director

DT:jm