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December 27, 1993

 

 

Mr. Wallace S. Nolen
P.O. Box 1389
Poughkeepsie, NY 12602-1389

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. Nolen:

I have received your letter of November 12 in which you sought
assistance concerning the Freedom of Information Law. Please
accept my apologies for the delay in response.

Having cited §500-f of the Correction Law in an opinion
previously sent to you, you wrote that it appears that
Administrator of the Dutchess County Jail has interpreted my
comments to mean that only the information described in that
provision must be disclosed. If indeed that is his view, I
respectfully disagree. While §500-f might require the preparation
and disclosure of a particular record, the Freedom of Information
Law pertains to all agency records and is based on 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.

You indicated that you have attempted to obtain a daily record
that contains the following information: "Date/Time of the
Printout, Inmate name, Housing Unit/Cell Number, Inmate Number, and
religion." In my view, insofar as the record includes inmates'
religion, I believe that such items could be withheld on the ground
that disclosure would constitute "an unwarranted invasion of
personal privacy." With regard to identification of inmates by
cells, it was contended that disclosure might create a security
problem. I cannot conjecture as to whether that is so. However,
to the extent that disclosure of those items "would endanger the
life or safety of any person", they may in my opinion be withheld
under §87(2)(f). Reference was made to the decision rendered in
Bensing v. LeFevre [506 NYS 2d 822 (1986)], a copy of which is
enclosed. In that case an inmate in a Special Housing Unit sought
the names of others in that unit, and it was found in part that:
"There is no doubt that a list of names of inmates incarcerated in
a particular institution should be readily available for
inspection, and the Court can see no distinction in making
available the actual Housing Unit within the Facility that an
inmate has been placed" (id., 824). It was also found that:
"Since the respondents have admitted that the information is
probably already available to the petitioner's client by virtue of
the fact that he was physically housed with the other inmates"
(id.), a denial based upon §87(2)(f) could not be justified.
Bensing involved disclosure of the names of inmates housed within
a particular unit of a facility with the inmate who sought the
records. I am unaware of the layout of the County Jail, whether
there are separate units within the Jail, or whether a claim based
upon §87(2)(f) may be justified. The proper assertion of that
provision and perhaps distinguishing the situation from that
described in Bensing would be dependent upon facts and
circumstances that may be known to jail officials, but not to me.

A second issue involves the disclosure of the list required to
be maintained pursuant to §87(3)(b) of the Freedom of Information
Law that includes the name, public office address, title and salary
of all officers or employees of an agency. As I understand your
comments, the list is maintained up to date, and the agency
"allegedly [has] a computer program that prints the list 'upon
demand'." Nevertheless, you wrote that a claim has been made that
facility officials "can take a month" to produce the list.

In this regard, the Freedom of Information Law provides
direction concerning the time and manner in which agencies must
respond to requests. Specifically, §89(3) of the Freedom of
Information Law states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the 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, 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."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

The remaining issue involves access to photographs of
employees taken for such routine purposes as the preparation of
identification cards.

In this regard, the Freedom of Information Law pertains to
agency records, and §86(4) defines the term "record" expansively to
include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based upon the foregoing language, which includes specific
reference to photos, it is clear in my view that materials in which
you are interested constitute "records" subject to rights of
access.

From my perspective, the only possible basis for withholding
official photos of correction officers or other public employees
would involve the rare circumstance in which an employee is
involved in undercover or similar work and disclosure would place
that person in jeopardy. In that instance, I believe that a
photograph could be withheld under §87(2)(f), which, as indicated
earlier, permits an agency to deny access to records when
disclosure "would endanger the life or safety of any person." In
the case of many correction officers, however, because they
interact with and are seen by inmates and perhaps the public in
their official capacities or because their positions do not involve
the performance of duties that would place them in danger if their
photographs were disclosed, I do not believe that §87(2)(f) would
serve as valid basis for that denial.

With respect to a possible claim that the records are
confidential under §50-a of the Civil Rights Law, the language of
that statute and its judicial interpretation indicate, in my
opinion, that such a contention would be without merit. Section
50-a, which pertains to correction officers and certain others,
refers to "personnel records, used to evaluate performance toward
continued employment or promotion" and states that such records are
confidential. In my view, an official photograph could not be
characterized as a record that is used for the purposes specified
in §50-a. If my contention is accurate, §50-a would not constitute
a valid basis for a denial of access.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: David Rugar, Acting Corrections Administrator