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FOIL-AO-15148

February 7, 2005

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 complained that you have encountered difficulty in gaining access to your co-defendant’s parole board hearing transcripts and the "Commissioner’s worksheet" pertaining to him. It appears that the worksheets are destroyed after a determination is made concerning parole.

From my perspective, it is likely that the primary issue in terms of rights of access involves the extent to which disclosure would constitute "an unwarranted invasion of personal privacy" with respect to both the inmate and perhaps others, such as those associated with the victims.

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. Section 87(2)(b) enables an agency to withhold records insofar as disclosure would result in an unwarranted invasion of personal privacy. While that standard is not defined, §89(2)(b) provides a series of examples of such invasions of privacy.

Also relevant is the Personal Privacy Protection Law, which deals in part with the disclosure of records or personal information by agencies concerning data subjects. A "data subject" is "any natural person about whom personal information has been collected by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal information" is defined to mean "any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject" [§92(7)]. For purposes of that statute, the term "record" is defined to mean "any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject" [§92(9)].

With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No agency may disclose any record or personal information", except in conjunction with a series of exceptions that follow. One of those exceptions involves when a record is "subject to article six of this chapter [the Freedom of Information Law], unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter". It is noted, too, that §89(2-a) of the Freedom of Information Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision two of this section if such disclosure is prohibited under section ninety-six of this chapter". Therefore, if a state agency cannot disclose records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the Freedom of Information Law.

Section 96(1) of the Personal Privacy Protection Law limits the circumstances under which state agency may disclose personally identifiable information. The only provision in my opinion that would permit the Division of Parole to disclose information identifiable to an inmate would involve §96(1)(c), which authorizes disclosure when personal information is available under the Freedom of Information Law, i.e., when disclosure would not constitute an unwarranted invasion of personal privacy.

While I am unfamiliar with the contents of the transcripts or the worksheet, information regarding the inmate's medical or mental condition, for example, would in my view constitute an unwarranted invasion of personal privacy if disclosed [see Freedom of Information Law, §89(2)(b)(i) and (ii)]. There may be other intimate details concerning the inmate that could be withheld in accordance with the privacy provisions.

Those provisions would also be applicable with respect to references to victims, their families and others affected by a crime. The extent to which they would apply would in my opinion be dependent on the specific nature of the information.

Also of potential significance is §87(2)(g), which permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

If, for example, a district attorney offered an opinion or recommendation to the Parole Board concerning the possibility of parole, the portions of the transcript reflective of that kind of advice or opinion could in my view be withheld under §87(2)(g).

Lastly, with respect to the destruction of the worksheets, I note that agencies cannot merely destroy records when they have the desire to do so. On the contrary, retention and disposal of records are governed by law. Specifically, §57.05 of the Arts and Cultural Affairs Law provides that the Commissioner of Education is empowered:

"[t]o authorize the disposal or destruction of state records including books, papers, maps, photographs, microphotographs or other documentary materials made, acquired or received by any agency. At least forty days prior to the proposed disposal or destruction of such records, the commissioner of education shall deliver a list of the records to be disposed of or destroyed to the attorney general, the comptroller and the state agency that transferred such records. No state records listed therein shall be destroyed if within thirty days after receipt of such list the attorney general, comptroller, or the agency that transferred such records shall notify the commissioner that in his opinion such state records should not be destroyed."

As such, it appears that the kinds of records in which you are interested may be destroyed only in accordance with a schedule established by the Commissioner of Education.

I hope that I have been of assistance.

Sincerely,

ROBERT J. FREEMAN
Executive Director

 

BY: Janet M. Mercer
Administrative Professional

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