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November 18, 1993

 

 

 

Mr. Salvator Letizia
88-C-0573
Auburn Correctional Facility
135 State Street
Auburn, NY 13024

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. Letizia:

I have received your letter of October 25 in which you sought
opinions concerning two requests, copies of which you enclosed.
You also asked for an opinion concerning the possibility of
obtaining rap sheets of co-defendants and trial witnesses who
testified at your trial from the Division of Criminal Justice
Services.

One of your letters is a request made under the Freedom of
Information Law to the clerk of a federal court in Buffalo. In
this regard, I point out that the Freedom of Information Law is
applicable to records maintained by entities of state and local
government in New York. That statute does not apply to records
maintained by a federal court. Further, although the federal
Freedom of Information Act pertains to records maintained by
federal agencies, federal courts are not subject to the Act.

With regard to your other areas of inquiry, I point out
initially that 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.

With respect to "rap sheets" or criminal history records, the
general repository of those records is the Division of Criminal
Justice Services. While the subject of a criminal history record
may obtain such record from the Division, it has been held that
criminal history records maintained by that agency are exempted
from public disclosure pursuant to §87(2)(a) of the Freedom of
Information Law. Nevertheless, if, for example, criminal
conviction records were used in conjunction with a criminal
proceeding by a district attorney, it has been held that the
district attorney must disclose those records [see Thompson v.
Weinstein, 150 AD 2d 782 (1989); also Geames v. Henry, ___ AD 2d
___, App. Div., Second Dept., NYLJ, June 7, 1991]. It is also
noted that while records relating to convictions may be available
from the courts or other sources, when charges are dismissed in
favor of an accused, records relating to those events are generally
sealed pursuant to §160.50 of the Criminal Procedure Law.

The remaining request involves records maintained by the Crime
Victims Board, including statements made by a crime victim, records
obtained by the Board and used in determining the compensation
given to the victim, and a record indicating the amount awarded to
him.

Although the Freedom of Information Law provides broad rights
of access, that statute, when applied in conjunction with the
Personal Privacy Protection Law, could likely preclude the Board
from much of the information that you have requested.

Significant in my opinion is §87(2)(b) of the Freedom of
Information Law, which authorizes an agency to withhold records or
portions thereof which "if disclosed would constitute an
unwarranted invasion of personal privacy under the provisions of
subdivision two of section eighty-nine of this article."

Section §89(2)(b) of that statute includes a series of
examples of unwarranted invasions of personal privacy. Although
those examples may not be specifically pertinent with respect to
each aspect of the records sought, I believe that they represent
few among many conceivable unwarranted invasions of privacy. In my
opinion, a statement of a victim, a record indicating the amount of
an award, and medical or similar records could clearly be withheld.

With regard to the Personal Privacy Protection Law, §96(1) of
that statute precludes a state agency from disclosing personal
information about a "data subject", unless disclosure is permitted
pursuant to exceptions authorizing disclosure that appear in the
ensuing portions of that provision. A "data subject" is "any
natural person about whom personal information has been collected
by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal
information" is defined to mean "any information concerning a data
subject which, because of name, number, symbol, mark or other
identifier, can be used to identify that data subject" [§92(7)].
For purposes of the Personal Privacy Protection Law, the term
"record" is defined to mean "any item, collection or grouping of
personal information about a data subject which is maintained and
is retrievable by use of the name or other identifier of the data
subject" [§92(9)].

Further, §89(2-a) of the Freedom of Information Law states
that:

"Nothing in this article [the Freedom of
Information Law] shall permit disclosure which
constitutes an unwarranted invasion of
personal privacy as defined in subdivision two
of this section if such disclosure is
prohibited under section ninety-six of this
chapter."

As such, when the Freedom of Information Law and the Personal
Privacy Protection Law are read in conjunction with one another, a
state agency cannot release records when disclosure would result in
an unwarranted invasion of personal privacy, unless disclosure is
otherwise permitted by §96. Therefore, to the extent that
disclosure would constitute an unwarranted invasion of personal
privacy, I believe that the Board must withhold the records sought.

Also of potential significance is §87(2)(g), which permits an
agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Scott Oakley