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 FOIL-AO-15083

December 29, 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 information presented in your correspondence.

Dear

As you know, I have received your inquiry relating to the ability of a law enforcement agency to publish information on the internet that is acquired from the sex offender registry pursuant to the Sex Offender Registration Act (hereafter "the Act").

In this regard, I know of no law that would prohibit a law enforcement agency or any person from disseminating information on the internet that was acquired from the sex offender registry. It is noted that I do not believe that the Freedom of Information Law is the governing statute concerning items maintained pursuant to the Act. Although I will offer an opinion concerning your question, it is suggested that you contact the agency most familiar with the Act, the Division of Criminal Justice Services, to seek its views.

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." Subdivision (2) states 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 accept files from any regional or national registry of sex offenders and shall make such available when requested pursuant to the provisions of this article. 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" (emphasis added).

Based on the sentence highlighted above, it is the position of both the Department of Law and the Division of Criminal Justice Services, and I concur, that information contained in the registry is to be disclosed only pursuant to the provisions of the Act, "only in the furtherance of the provisions of this article", which is Article 6-C of the Correction Law.

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.

As you are aware, certain aspects of the contents of the registry are forwarded to local law enforcement 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. There is no statement in that provision regarding the further dissemination of information concerning the level one offender. 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 other entities, such as school districts. Those entities "may disclose or further disseminate such information at their discretion."

While there is no mention of the publication on the internet of information derived from the sex offender registry, again, I know of no provision in the Act or any other law that would prohibit or preclude an entity or person from so doing. I point out that in a case dealing with records required to be filed with the State Department of Insurance based on a provision in the Insurance Law, it was held that a person who acquired them following a request made under the Freedom of Information Law was not prohibited from disseminating their contents on the internet [see Belth v. New York State Department of Insurance, 733 NYS2d 833 (2001)].

I hope that I have been of assistance.

RJF:jm