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April 28, 1994

 

 

Mr. David Barton
81-C-0516
Box 149
Attica, NY 14011

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. Barton:

I have received your letter of March 21. Your inquiry
pertains to your ability to obtain a copy of your pre-sentence
report.

In this regard, although the Freedom of Information Law
provides broad rights of access to records, the first ground for
denial, §87(2)(a), states that an agency may withhold records or
portions thereof that "...are specifically exempted from disclosure
by state or federal statute..." Relevant under the circumstances
is §390.50 of the Criminal Procedure Law, which, in my opinion
represents the exclusive procedure concerning access to pre-sentence reports.

Section 390.50(1) of the Criminal Procedure Law states that:

"Any pre-sentence report or memorandum
submitted to the court pursuant to this
article and any medical, psychiatric or social
agency report or other information gathered
for the court by a probation department, or
submitted directly to the court, in connection
with the question of sentence is confidential
and may not be made available to any person or
public or private agency except where
specifically required or permitted by statute
or upon specific authorization of the court.
For purposes of this section, any report,
memorandum or other information forwarded to a
probation department within this state is
governed by the same rules of confidentiality.
Any person, public or private agency receiving
such material must retain it under the same
conditions of confidentiality as apply to the
probation department that made it available."

In addition, subdivision (2) of §390.50 states in part that: "The
pre-sentence report shall be made available by the court for
examination and copying in connection with any appeal in the
case..."

In view of the foregoing, I believe that a pre-sentence report
may be made available only upon the order of a court, and only
under the circumstances described in §390.50 of the Criminal
Procedure Law. It is suggested that you review that statute.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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