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FOIL-AO-14486

January 27, 2004

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter in which you indicated that you were informed that military discharge papers are no longer accessible to the public. You have asked whether that should be so.

In this regard, by way of background, §250 of the Military Law, which has remained unchanged for some forty years, states that any certificate of honorable discharge issued after April 6, 1917 "may be recorded in any one county, in the office of the county clerk, and when so recorded shall constitute notice to all public officials of the facts set forth therein." As such, although there is no requirement that they do so, veterans may file certificates of honorable discharge with county clerks. The more recent filings, perhaps those within the last twenty years, include social security numbers.

A veteran who chooses to file a certificate of honorable discharge with a county clerk has the ability to direct that it be sealed pursuant to §79-g of the Civil Rights Law. That provision states that:

"a. Notwithstanding the provisions of any general, special or local law to the contrary, any person filing a certificate of honorable discharge in the office of a county clerk shall have the right to direct the county clerk to keep such certificate sealed.

b. Thereafter, such certificate shall be made available to the veteran, a duly authorized agent or representative of such veteran or the representative of the estate of a deceased veteran but shall not be available for public inspection."

Although the Freedom of Information Law is based on a presumption of access, the first ground for denial would authorize county clerks to shield from the public certificates of honorable discharge that have been sealed based on the direction to do so by a veteran. Section 87(2)(a) pertains to records that are "specifically exempted from disclosure by state or federal statute." Section 79-g of the Civil Rights Law is such a statute, and if direction to seal is given by a veteran, a county clerk would be prohibited from disclosing, notwithstanding the provisions of the Freedom of Information Law.

When there is no direction by a veteran to seal a certificate of honorable discharge, that record, like all others, would be subject to rights conferred by the Freedom of Information Law. As I understand the content of such a record, the only item that could be withheld would be the social security number. It has been held that local government agencies may withhold social security numbers on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §87(2)(b)], but that they not required to do so [Seelig v. Sielaff, 201 A.D. 2d 298 (1994)]. As a general matter, even though a local government agency, i.e., a county, may withhold records or portions thereof in appropriate circumstances, it is not obliged to do so, because the Freedom of Information Law is permissive. Therefore, while I believe that a local government agency may delete social security numbers from records that are otherwise available, the Freedom of Information Law would not prohibit a county clerk from disclosing certificates of honorable discharge in their entirety, unless those records are sealed under §79-g of the Civil Rights Law.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.

cc: Genesee County Clerk