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April 22, 1993

 

 

Mr. Rafael Robles
Clinton Correctional Facility
Box 200l
Dannemora, NY 12929

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 Mr. Robles:

I have received your letter of April 5 in which you sought an
advisory opinion concerning the Freedom of Information Law.

Your first area of inquiry involves a denial of a request for
a marriage record by the Bureau of Vital Records at the State
Department of Health. It appears that you requested the record in
order to obtain a name of a person who testified at your trial.
You indicated that in the response to the request, you were
informed that only a party to a marriage or that person's
representative could obtain a marriage record. Further, you were
not given an address for purposes of appealing a denial of the
request.

In this regard, §201(1)(b) of the Public Health Law provides
that the Department of Health shall "supervise and control the
regulation of...marriages", and §206(1)(e) requires the
Commissioner of the Department to "obtain, collect and
preserve...information relating to marriage..." Nevertheless, I am
unaware of any provision of the Public Health Law that pertains
specifically to access to marriage records. Further, it is noted
that marriage records are maintained in two locations, the State
Department of Health, and at the offices of town and city clerks
that issue marriage licenses. In a recent decision involving
access to marriage records, it was held that "names of couples to
whom marriage licenses have been issued, as those names are
recorded in the City Clerk's Office" are accessible (Gannett Co.,
Inc. v. City Clerk's Office, City of Rochester, Supreme Court,
Monroe County, March 15, 1993).

With respect to the right to appeal, when a request for
records is denied, a denial may be appealed in accordance with
§89(4)(a) of the Freedom of Information Law. That provision states
in relevant part that:

"any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive or
governing body of the entity, or the person
therefor designated by such head, chief
executive, or governing body, who shall within
ten business days of the receipt of such
appeal fully explain in writing to the person
requesting the record the reasons for further
denial, or provide access to the record
sought."

Further, the regulations promulgated by the Committee on Open
Government (21 NYCRR Part 1401), which govern the procedural
aspects of the Law, state that:

"(a) The governing body of a public
corporation or the head, chief executive or
governing body of other agencies shall hear
appeals or shall designate a person or body to
hear appeals regarding denial of access to
records under the Freedom of Information Law.

(b) Denial of access shall be in writing
stating the reason therefor and advising the
person denied access of his or her right to
appeal to the person or body established to
hear appeals, and that person or body shall be
identified by name, title, business address
and business telephone number. The records
access officer shall not be the appeals
officer" (section 1401.7).

It is also noted that the state's highest court has held that
a failure to inform a person denied access to records of the right
to appeal enables that person to seek judicial review of a denial.
Citing the Committee's regulations and the Freedom of Information
Law, the Court of Appeals in Barrett v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to
advise petitioner of the availability of an
administrative appeal in the office (see, 21
NYCRR 1401.7[b]) and failed to demonstrate in
the proceeding that the procedures for such an
appeal had, in fact, even been established
(see, Public Officers Law [section] 87[1][b],
he cannot be heard to complain that petitioner
failed to exhaust his administrative remedies"
[74 NY 2d 907, 909 (1989)].

Therefore, when a request is denied, the person issuing the
denial is required to inform a person denied access of the right to
appeal as well as the name and address of the person or body to
whom an appeal may be directed.

Your remaining area of inquiry involves whether and where you
can seek to obtain a determination rendered by the Parole Board.
In my view, in general, a final determination of the Board would be
available, except to the extent that disclosure would constitute an
unwarranted invasion of personal privacy pursuant to §87(2)(b) of
the Freedom of Information Law. In some instances, such a
determination might include medical or psychiatric information, for
example, that could be withheld.

To seek such a record, it is suggested that you write to:

William Altschuller, Records Access Officer
NYS Division of Parole
97 Central Avenue
Albany, NY 12205

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Bureau of Vital Records