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May 18, 1994

 

 

Mr. Raymond Mitchell
#92-A-7999
Great Meadow Corr. Facility
PO Box 51
Comstock, NY 12821

Dear Mr. Mitchell:

I have received your letter of May 15.

In the initial portion of your letter, you requested copies of
recent opinions concerning §95(6)(c) of the Personal Privacy
Protection Law providing that rights conferred by that statute do
not pertain to personal information sought by an inmate. There are
no recent advisory opinions that have been rendered on that
subject, and that provision rarely is cited due to the existence of
a different provision. Although §95(1) of the Personal Privacy
Protection Law generally grants rights of access to records to a
person to whom the records pertain, §95(7) provides that rights of
access "shall not apply to public safety agency records". The
phrase "public safety agency record" is defined by §92(8) to mean:

"a record of the commission of corrections,
the temporary state commission of
investigation, the department of correctional
services, the division for youth, the division
of probation or the division of state police
or of any agency of component thereof whose
primary function is the enforcement of civil
or criminal statutes if such record pertains
to investigation, law enforcement, confinement
of persons in correctional facilities or
supervision of persons pursuant to criminal
conviction or court order, and any records
maintained by the division of criminal justice
services pursuant to sections eight hundred
thirty-seven, eight hundred thirty seven-a,
eight hundred thirty-seven-c, eight hundred
thirty-eight, eight hundred thirty-nine, eight
hundred forty-five, and eight hundred forty-five-a of the executive law."

Therefore, while the Personal Privacy Protection Law applies to
records maintained by state agencies, rights of access conferred by
that law do not include records of agencies or units within
agencies whose primary functions involve investigation, law
enforcement or the confinement or persons in correctional
facilities.

You also sought my opinions concerning "an agency's lack of
response to a FOIL request after thirty (30) days". The only
reference to thirty days in the Freedom of Information Law pertains
to the right to appeal within thirty days of a denial of access to
records. The Law does, however, provide 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)].

As requested, enclosed are copies of recent advisory opinions
concerning unwarranted invasions of personal privacy.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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