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March 15, 1993

 

Ms. Ellen DiScioscin
58 Sixth Avenue
Gloversville, NY 12078

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 Ms. DiScioscin:

I have received your letter of February 22 in which you sought
assistance in your efforts in obtaining records relating to
probation.

According to your letter, two members of your family were
injured by a "D.W.I. driver" in June. The driver was convicted and
placed on probation. It is your belief that a victim in such
circumstances has the "right to follow up on the one whom was
convicted of the charges that injured them, and to be kept in
contact with the Probation Dept...in charge of the 'convicted'
person." You wrote, however, that the local probation department
has not provided any information.

In this regard, I am unaware of any statutory provision that
pertains to access to or the confidentiality of probation records,
except §390.50 of the Criminal Procedure Law, which deals with pre-sentence reports and related records. There are, however, certain
provisions of the regulations promulgated by the State Division of
Probation pertaining to probation records generally. Section
348.1(b) states that:

"(b) Cumulative case record is a single case
file containing all information with respect
to a case from its inception through its
conclusion. All records developed and/or
received by the probation department and which
are related to the carrying out of authorized
probation functions and services are
considered probation records for the purpose
of retention and destruction. Reports and
other records material developed by the
probation department and transmitted to the
courts of other agencies become the
responsibility of the court or other agencies
as records."

Further, §348.4(k) of the regulations provides that: "Case records
shall be accessible, in whole or in part, only to those authorized
by law or court order." It appears that the quoted provision to
represents the basis upon which the County relied withholding the
records.

Nevertheless, it is questionable in my view whether
regulations can serve as an appropriate basis for withholding
records, for it has been held that regulations do not exempt
records from disclosure. Section 87(2)(a) of the Freedom of
Information Law permits an agency to withhold records that are
"specifically exempted from disclosure by state or federal
statute". It has been held by several courts, including the Court
of Appeals, that an agency's regulations or the provisions of an
administrative code or ordinance, for example, do not constitute a
"statute" [see e.g., 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); Zuckerman v. NYS Board of Parole,
385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse,
521 NYS 2d 207 (1987)]. For purposes of the Freedom of Information
Law, a statute would be an enactment of the State Legislature of
congress. Therefore, I do not believe that regulations can be
considered as a statute that would exempt records from disclosure
or that an agency can rely upon regulations as a basis for
withholding a record.

If indeed the regulations cited earlier represent the sole
basis for denial and have been invalidly asserted, it would appear
that rights of access would be governed by the Freedom of
Information Law. 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 section 87(2)(a) through (i) of the Law.

Without knowledge of the contents of the records sought, I
could not conjecture as to rights of access. However, since the
records appear to relate in part to a person other than yourself,
it is possible that §87(2)(b) may be relevant. That provision
permits an agency to withhold records to the extent that disclosure
would constitute "an unwarranted invasion of personal privacy".

There are, however, other provisions of the law that may be of
interest to you. Section 440.50(1) of the Criminal Procedure Law
states that:

"Upon the request of a victim of a crime, the
district attorney shall, within sixty days of
the final disposition of the case, inform the
victim by letter of such final disposition.
If such final disposition results in the
commitment of the defendant to the custody of
the department of correctional services, the
notice provided to the crime victim shall also
inform the victim of his right to submit a
written victim impact statement to the state
division of parole pursuant to subdivision two
of section two hundred fifty-nine-i of the
executive law."

In addition, §440.10(1) of the Criminal Procedure Law states that:

"When the court pronounces a sentence of
probation or of conditional discharge it must
specify as part of the sentence the conditions
to be complied with. Where the sentence is
one of probation, the defendant must be given
a written copy of the conditions at the time
sentence is imposed. In any case where the
defendant is given a written copy of the
conditions, a copy thereof must be filed and
become part of the record of the case, and it
is not necessary to specify the conditions
orally."

Further, §470.10(2) of the Criminal Procedure Law states in
relevant part that:

"The court must file or cause to be filed with
the clerk of the court a statement setting
forth the condition or conditions of the
sentence violated and a reasonable description
of the time, place and manner in which the
violation occurred."

As such, certain records concerning the person convicted
should be available from the Office of the District Attorney and
the court in which the proceeding was conducted.

Lastly, although the Freedom of Information Law does not apply
to the courts or court records, such records when filed with a
clerk are generally available under other statutes (see e.g.,
Judiciary Law, §255). Assuming that a record is accessible from
the clerk of the court with which it was filed, it would be most
appropriate in my view to seek to obtain it from the clerk.
However, if a copy is maintained by a probation department, I
believe that it would be equally available from that agency.
Stated differently, if a record is available from one government
office, the same record in my view should be available from
another.
I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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