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May 24, 1994

 

 

Mr. Warren Broderick
The State Education Department
State Archives & Records Administration
Division of External Programs
Cultural Education Center
Albany, NY 12230

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,
unless otherwise indicated.

Dear Mr. Broderick:

I have received your letter of April 18 in which you requested
an advisory opinion concerning public access to certain records.

Specifically, in your capacity as Senior Public Records
Management Specialist at the State Archives and Records
Administration, you wrote that a county clerk had denied a request
by a researcher for veterans' certificates of honorable discharge.
The denial was apparently based on a claim that "these records had
been 'sealed' to the general public because of some unspecified
Federal requirement dating from the post-World War II era."

In this regard, I offer the following comments.

First, having contacted the United States Department of
Veterans Affairs on your behalf, I was informed that there is no
federal statute that would require that certificates of honorable
discharge or related records be sealed or that prohibits disclosure
of those records.

Second, the New York Freedom of Information Law, which applies
to records maintained by state and local agencies, 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.

Third, as you are aware, a veteran may record a certificate of
honorable discharge with a county clerk pursuant to §250 of the
Military Law, and §79-g of the Civil Rights Law states that:

"a. Notwithstanding the provisions of any
general, special or local law to the contrary,
any person filing a certificate of honorable
discharge in the office of a county clerk
shall have the right to direct the county
clerk to keep such certificate sealed.

b. Thereafter, such certificate shall be made
available to the veteran, a duly authorized
agent or representative of such veteran or the
representative of the estate of a deceased
veteran but shall not be available for public
inspection."

When a veteran directs that his or her certificate of honorable
discharge filed with a county clerk be sealed, the record would be
specifically exempted from disclosure by statute [see Freedom of
Information Law, §87(2)(a)]. In all other circumstances, i.e.,
when veterans does not direct that certificates of honorable
discharge be sealed, I believe that those records must be
disclosed. In short, none of the grounds for denial could
appropriately be cited to withhold certificates of honorable
discharge, absent direction to seal the records conferred by §79-g
of the Civil Rights Law.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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