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FOIL-AO-17688

                                                                                                June 26, 2009

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 and the materials attached to it, and I hope that you will accept my apologies for the delay in response.

            You referred to an article that I prepared that dealt in part with criminal conviction histories, and you indicated that it was timely due to an issue that arose in a lawsuit in which Schuyler County is involved.  Specifically, the Sheriff’s Department was asked by County plaintiffs to forward their criminal histories to them.  You wrote, however, that you “were surprised to discover that the ‘Use and Dissemination Agreement’ between DCJS and the Schuyler County Sheriff’s Department prohibited [y]our access to the requested information.”  That result is contrary to the suggestion offered in the article that I authored, and you asked that I comment on the matter.

            In this regard, it is emphasized that I mindful of the content of the Use and Dissemination Agreement and the longstanding practices of DCJS relative to the disclosure of criminal history records, as well as the judicial decisions concerning access to those records.  I am also aware that DCJS has disagreed with my opinion.  Nevertheless, I believe that a careful analysis of the law, coupled with advances in information technology and the reality that equivalent records are routinely disclosed, merits a conclusion that those portions of criminal history records indicating convictions must be disclosed.

            As you are aware, 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 (j) of the Law.

            The initial ground for denial of access, §87(2)(a), pertains to records that “are specifically exempted from disclosure by state or federal statute”, and DCJS has contended that subdivisions (6) and (8) of §837 of the Executive Law exempt the records at issue from disclosure.  Those provisions state, respectively that the Division shall:

“Establish, through electronic data processing and related procedures, a central data facility with a communication network serving qualified agencies anywhere in the state, so that they may, upon such terms and conditions as the commissioner, and the appropriate officials of such qualified agencies shall agree, contribute information and, except as provided in subdivision two of section 306.2 of the family court act, have access to information contained in the central data facility, which shall include but not limited to such information as criminal record, personal appearance data, fingerprints, photographs, and handwriting samples...

“Adopt appropriate measures to assure the security and privacy of identification and information data.”

            As I understand subdivision (6), it does not confer confidentiality or address the matter of public access to records.  Although subdivision (8) refers to the Division’s obligation to “assure the security and privacy of identification and information data”, it does not specify that records are confidential or exempt from disclosure.  While there may be records or elements of records that may properly be withheld, there does not appear to be justification in the Executive Law  for withholding every aspect of criminal conviction records in every situation. 

            To implement subdivision (8), the regulations promulgated by the Division, state in relevant part that “...the following types of records shall be exempt from public inspection and/or copying....disclosure of information contained in the criminal history file, license and employment file and wanted and missing persons file, maintained by DCJS, including any and all information contained in such files” [9 NYCRR §6150.4(6)].

            According to judicial decisions, an agency’s regulations may not render records deniable or confidential, unless there is a basis for so doing pursuant to one or more of the grounds for denial appearing in the Freedom of Information Law.  Again,§87 (2)(a) refers to records that are specifically exempted from disclosure by statute.  A statute, based upon judicial interpretations of the Freedom of Information Law, is an act of the State Legislature or Congress [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)], and it has been found that agencies’ regulations are not equivalent to statutes for purposes of §87 (2)(a) of the Freedom of Information Law [see Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982) ].  Therefore, insofar as an agency’s regulations render records or portions of records deniable in a manner inconsistent with the Freedom of Information Law or some other statute, those regulations would, in our opinion, be invalid. Regulations cannot operate, in our view, in a manner that provides fewer rights of access than those granted by the Freedom of Information Law.

            In this instance, the regulations promulgated by the Division in my view exempt records from disclosure in a manner that is inconsistent with the Freedom of Information Law.  Most significantly, I believe that portions of records indicating convictions should be made available to the public, for disclosure, for reasons to be considered later in this opinion, would not constitute an unwarranted invasion of personal privacy.  Moreover, insofar as materials include records that have been disclosed during public judicial proceedings, it has been found that those records are accessible pursuant to the Freedom of Information Law [see Moore v. Santucci, 151 AD2d 677 (1989)].  I note, too, that it was determined more than thirty years ago that regulations based on a similar grant of statutory authority could not exempt from disclosure records that were otherwise available under the Freedom of Information Law.  In Zuckerman v. Board of Parole, a statute concerning persons “released on parole or conditional release” and a requirement to promulgate “rules as to the privacy of these records”, the court found that the regulations were invalid insofar as they excepted records from disclosure that would be accessible pursuant to the Freedom of Information Law (supra, 407).

            In short, because the language of the Executive Law does not specify that particular records are exempted from disclosure, the Division’s regulations, in my opinion, go beyond the Division’s statutory grant of authority by making records confidential in a manner inconsistent with law.

            Next, insofar as records indicate that a person has been convicted of a criminal offense, as suggested above, I do not believe that disclosure would constitute “an unwarranted invasion of personal privacy.”  In good faith, as I indicated in the article, a different conclusion was reached in U.S. Department of Justice v. Reporters Committee for Freedom of the Press [489 U.S. 749 (1989)], which involved a request for "rap sheets", the criminal history records including reference to arrests and convictions, relating to certain individuals.  The records sought were located within a database maintained by the FBI.  The Supreme Court acknowledged that some of the contents of rap sheets are frequently available, stating that: "Arrests, indictments, convictions, and sentence are public events that are usually documented in court records.  In addition, if a person's entire criminal history transpired in a single jurisdiction, all of the elements of his or her rap sheet may be available upon request in that jurisdiction."  Nevertheless, the Court also recognized that if those events did not occur in a single jurisdiction, it may be difficult if not impossible to find records comprising the elements of one's criminal history, stating that "Although much rap-sheet information is a matter of public record, the availability and dissemination of the actual rap sheet to the public is limited."  That being so, the Court sought to balance the privacy interest in maintaining the "practical obscurity" of the records against the public interest in disclosure, stating that:

"the issue here is whether the compilation of otherwise hard-to-obtain information alters the privacy interest implicated by disclosure of that information.  Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information."

            In essence, it appears that the Supreme Court found that if the elements of a record are public but difficult to find, and if those elements are maintained in a computerized government "clearinghouse" of "compiled computerized information", the federal Freedom of Information Act authorizes a federal agency to withhold the data on the ground that disclosure would constitute an unwarranted invasion of personal privacy.

            Notwithstanding my respect for the Supreme Court and DCJS, it is difficult in my opinion to justify a conclusion that an item of public information available from one public source, such as a courthouse, a police station, or a sheriff’s department would, if disclosed result in an unwarranted invasion of privacy if it is sought from another public source that can make the record readily available.  From my perspective, it is the nature of the public information that should determine whether or the extent to which it must be disclosed under the New York Freedom of Information Law, not the ease or difficulty of obtaining it.  Pertinent is Capital Newspapers v. Poklemba (Supreme Court, Albany County, April 6, 1989), which I believe to be the only state decision that focused in an any detail on the "practical obscurity" or "computerized clearinghouse" concepts referenced by the Supreme Court.  To reiterate that aspect of the holding (which was rendered by Judge Kahn, who is now a U.S. District Court judge):

"...petitioner is correct when it asserts that the transmittal of an otherwise publicly available document to a centralized facility for inclusion in a government computer bank does not per se render it immune from disclosure.  However, the issue is not whether the records under the control of DCJS should be released, but rather whether the provisions of FOIL and the Executive Law, as presently constituted, mandate the result sought by petitioner.

"Certainly, the Legislature has the authority to provide for public access from a centralized location.  It is equally clear that, unless otherwise sealed, a conviction record is a public document.  Much has been said about potential abuses, given the ease with which these records may be obtained if the petition is sustained.  Such fears are not determinative however.  To argue that a criminal conviction obtained in a public proceeding in an open court system suddenly should be clothed with secrecy merely because an individual doesn't have to struggle to obtain it, makes a mockery of the right of public access.  To suggest that public disclosure of conviction records is available only when it is through a difficult and time-consuming search of individual courthouse files or in local police stations, when the exact same information might be freely available if housed within a centralized computer bank, would be to create an irrational burden.  Resolution of the question should not be resolved by how hard it is to discover the information sought” (emphasis added by the court).

            The court did not determine that disclosure would constitute an unwarranted invasion of personal privacy, but in fact suggested that conviction records are generally available from the courts in which proceedings resulted in convictions were conducted "or in local police stations."

            The Court of Appeals inferentially reached the same conclusion and recognized that not all elements of criminal history records are accessible to the public.  In New York and many other jurisdictions, there is a distinction in terms of rights of access between those situations in which a person has been found to have engaged in a violation of law, and those in which charges against an individual have been dismissed in his or her favor.  In the latter case, records relating to an event that did not result in a conviction ordinarily become sealed pursuant to §160.50 or perhaps other provisions of the Criminal Procedure Law.  However, if it is determined that a person has engaged in a criminal offense, the record would be available from the courts in which the proceedings occurred. In this regard, the Court of Appeals determined in 1984 that traffic tickets issued and lists of violations of the Vehicle and Traffic Law compiled by the State Police during a certain period must be disclosed by an agency pursuant to the Freedom of Information Law, unless charges were dismissed and the records sealed pursuant to provisions of the Criminal Procedure Law [see Johnson Newspaper Corp. v. Stainkamp, 61 NY2d 958).  In short, while records pertaining to person whose charges were dismissed likely would not be accessible, those indicating convictions were found to be a matter of public record. 

            The notion of “practical obscurity” and the Supreme Court’s conclusion might have been appropriate in 1989 when its decision was rendered, but due to advances in information technology and electronic information systems, it is questionable, in my opinion, whether that court or others would reach the same conclusion today.  There are numerous instances in which items were difficult to find, but today, with sophisticated search mechanisms, they might be located and disseminated widely with relative ease.  

            Although DCJS contends and through its regulations specifies that records of convictions are exempt from disclosure, another state agency makes those same records available upon payment of a fee.  The Office of Court Administration (OCA) indicates on its website that it “provides a New York Statewide criminal history record search (CHRS) for a fee of $52.00....The search includes data from all 62 counties pertaining to convictions and open/pending cased originating from City and County courts.  Town & Village criminal disposition data is limited.”  The basis for disclosure and the fees is Chapter 62 of the Laws of 2003, Part J, §14.  Moreover, as stated earlier, records of convictions maintained by the courts in which individuals were convicted are accessible, not pursuant to the Freedom of Information Law, which exempts the courts from its coverage, but rather pursuant to other statutes that generally require that records maintained by courts be made available to the public (see e.g., Judiciary Law, §255; Uniform Justice Court Act, §2019-a).

            In sum, for the reasons described above, I believe that the longstanding practices of DCJS are of questionable validity, and that criminal history records must generally be made available to the public.  Exceptions would involve those instances in which records have been sealed, as in cases in which charges are dismissed in favor of an accused, based on §§160.50 or 160.55 of the Criminal Procedure Law, when a court has adjudicated a person as a youthful offender and records are sealed under §720.15 or 720.35 of the Criminal Procedure Law, or when the records relate to the arrest of a juvenile and are exempt from disclosure under §784 of the Family Court Act.

            I hope that I have been of assistance, and if you would like to discuss the matter, please feel free to contact me.   I would be interested in your views as well.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

 

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