NY.gov Portal State Agency Listing

 

April 30, 1993

 

 

Mr. Lee E. Brothers
78-D-0143
Washington Correctional Facility
Comstock, NY 12821-0180

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. Brothers:

I have received your letter and the materials attached to it,
which reached this office on April 16.

In brief, having requested a copy of the "master index" from
the inmate records coordinator at your facility, you were informed
that the request would be forwarded to the freedom of information
officer. You have contended that in so doing, the inmate records
coordinator denied your request. Further, the freedom of
information officer indicated that the record sought does not
exist.

You have sought advice on the matter. In this regard, I offer
the following comments.

First, I would conjecture that the inmate records coordinator
deals with records identifiable to inmates, rather than records
generally. If that is so, her act of forwarding your request to
the freedom of information officer would have been appropriate and
could not be construed as a denial of your request.

Second, reference to a master index appears in the Department
of Correctional Services' regulations. Those regulations are based
upon §87(3)(c) of the Freedom of Information Law, which requires
that each agency maintain:

"a reasonably detailed current list by subject
matter, of all records in the possession of
the agency, whether or not available under
this article."

The subject matter list is not, in my opinion, required to identify
each and every record of an agency; rather I believe that it must
refer, by category and in reasonable detail, to the kinds of
records maintained by an agency. Further, although a subject
matter list is not prepared with respect to records pertaining to
a single individual, such a list should be sufficiently detailed to
enable an individual to identify a file category of the record or
records in which that person may be interested. I direct your
attention to the regulations promulgated by the Department of
Correctional Services, which in §5.13 state that:

"(a) Every custodian of records under these
regulations shall maintain an up-to-date
subject matter list, reasonably detailed, of
all records in their possession. The records
access officer shall maintain a master index,
reasonably detailed, of all records maintained
by the department. The master index shall
include the lists kept by all custodians as
well as a list of records maintained at the
department's central office.

(b) Each subject matter list and the master
index shall be sufficiently detailed to permit
identification of the file category of the
record sought.

(c) The master index shall be updated not
less than twice per year. The most recent
update shall appear on the first page of the
subject matter list. Each custodian of
records and the records access officer shall
make available the index kept by him for
inspection and copying. Any person desiring a
copy of such list may request in writing a
copy and upon payment of the appropriate fee,
unless waived, a copy of such list shall be
mailed or delivered."

Based on the foregoing, it is clear in my view that a master list
must be maintained and made available at each facility. By
reviewing a subject matter list, you can ascertain the kinds of
records maintained by an agency and thereafter, request records
based upon your review of the list.

Lastly, you sought advice concerning a "Vaughn motion". It
appears that you are referring to an interpretation of the federal
Freedom of Information Act, Vaughn v. Rosen [484 F2d 820 (1973)],
requiring the preparation of such an index to provide an analysis
of documents withheld by an agency as a means of justifying a
denial and insuring that the burden of proof remains on the agency.
However, I am unaware of any decision involving the New York
Freedom of Information Law that requires the preparation of a
similar index. Further, one decision suggests the preparation of
that kind of analysis might in some instances subvert the purpose
for which exemptions are claimed. In that decision, an inmate
requested records referring to him as a member of organized crime
or an escape risk. In affirming a denial by a lower court, the
Appellate Division found that:

"All of these documents were inter-agency or
intra-agency materials exempted under Public
Officers Law section 87(2)(g) and some were
materials the disclosure of which could
endanger the lives or safety of certain
individuals, and thus were exempted under
Public Officers Law section 87(2)(f). The
failure of the respondents and the Supreme
Court, Westchester County, to disclose the
underlying facts contained in these documents
so as to establish that they did not fall
'squarely within the ambit of [the] statutory
exemptions' (Matter of Farbman & Sons v. New
York City Health and Hosps. Corp., 62 NY 2d
75, 83; Matter of Fink v. Lefkowitz, 47 NY 2d
567, 571), did not constitute error. To make
such disclosure would effectively subvert the
purpose of these statutory exemptions which is
to preserve the confidentiality of this
information" [Nalo v. Sullivan, 125 AD 2d 311,
312 (1987)].

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Lorraine Hunt, Inmate Records Coordinator
Bradley Ward, Freedom of Information Officer
Anthony Annucci, Counsel