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October 6, 1993

 

 

Mr. Anthony Logallo
90-B-1210
3622 Wende Road
Alden, NY 14004

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. Logallo:

I have received your letter of August 29, as well as a letter
of September 29 in which you inquired as to whether I had received
the former correspondence.

Your inquiry pertains to a denial of access to a "victim
notice", which may be filed by a victim or family member of the
victim pursuant to §149-a of the Correction Law. Under that
statute, if such a notice has been filed, the Department of
Correctional Services is required "at the time of any discharge,
temporary release or parole of an inmate named in such form, to
notify the victim or family member by certified mail of such
release." Since §149-a does not specify that a victim notice is
confidential, you have contended that it is a "public document".
You asked whether in my view a victim notice may be withheld, and
if so, whether it may be still withheld if all names and addresses
are deleted.

In this regard, I offer the following comments.

First, 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.

Second, although §149-a of the Correction Law does not require
that a victim notice remain confidential, in my opinion one or more
of the grounds for denial appearing in the Freedom of Information
Law would likely justify a denial of access to such a record.
Section 87(2)(b) of the Freedom of Information Law enables an
agency to withhold records insofar as disclosure would constitute
"an unwarranted invasion of personal privacy". While that standard
is not and in my view cannot be precisely defined, I believe that
a victim notice would fall within the scope of that exception.
Further, even if identifying details are deleted, it is likely that
an inmate could ascertain the identity of a person filing such a
notice, for notices may be filed only by victims or members of
their families. Consequently, it is likely that a victim notice
could be withheld in its entirety. In addition, arguably,
§87(2)(f) would serve as a basis for denial. That provision states
that an agency may withhold records when disclosure would "endanger
the life or safety of any person."

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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