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June 21, 1994

 

 

Mr. John Restivo 87-A-1969
Drawer B
Stormville, NY 12582-0010

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. Restivo:

I have received your letter of May 27, which reached this office on June 6.

According to your letter and the correspondence attached to it, you requested records concerning a former inmate at the Nassau County Correctional Center. You identified that person by name and date of birth and indicated that he had been incarcerated at that facility during particular years. You sought records involving the dates of that person's confinement and the housing units in which he was located, as well as the visitors log or other record identifying those who visited the inmate. The Sheriff's Department withheld the records citing "Section 872.(6) and Section 892.(6) of the Public Officers Law."

You have asked whether, in my view, the records in question are available under the Freedom of Information Law. In addition, in the letter of denial, you were informed that you could direct an appeal to the Nassau County Attorney's Office. You asked whether an appeal should instead by made the Sheriff "who would be considered the head of the Sheriff's Department and the Nassau County Correctional Center."

In this regard, I offer the following comments.

First, as a general matter, 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.

Second, in addition to the Freedom of Information Law, of potential relevance is §500-f of the Correction Law, which pertains to county jails and states that: "Each keeper shall keep a daily record, to be provided at the expense of the county, of the commitments and discharges of all prisoners delivered to his charge, which shall contain the date of entrance, name, offense, term of sentence, fine, age, sex, place of birth, color, social relations, education, secular and religious, for what and by whom committed, how and when discharged, trade or occupation, whether so employed when arrested, number of previous convictions. The daily record shall be a public record and shall be kept permanently in the office of the keeper."

If references to inmates can be located in conjunction with the commitment and discharge record described above, the contents of that record as it pertains to the individual in question should in my opinion be made available.

Third, a potential issue involves the requirement in §89(3) of the Freedom of Information Law that an applicant must "reasonably describe" the records sought. It has been held that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.

In the context of your request, again, if records involving the dates of one's confinement can be found on the basis of the information that you provided, I believe that you would have met the requirement of reasonably describing the records. With regard to the housing units in which the inmate was located, I point out that in Bensing v. LeFevre [506 NYS 2d 822 (1986)] it was held that records identifying inmates incarcerated in segregated housing units were public and that disclosure would not constitute an unwarranted invasion of personal privacy. Based upon that decision, if the agency maintains and can locate records indicating the units in which the inmate in question was housed, I believe that those records would be available.

I note in passing that the provisions cited in the denial are not part of the Public Officers Law. I would conjecture that the person who denied access was referring to §87(2)(b) and §89(2)(b) of the Public Officers Law; both of those provisions pertain to the ability to withhold records to the extent that disclosure would constitute an unwarranted invasion of personal privacy.

Fourth, if a visitors log or similar documentation is kept in plain sight and can be viewed by any person, and if the staff at the Correctional Center have the ability to locate portions of the log pertaining to particular individuals based upon the information that you provided, I believe that those portions of the log would be available. However, if a visitors log or similar documents are not kept in plain sight and cannot ordinarily be viewed, it is my opinion that a visitors log could be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy. In short, the identities of those with whom a person associates is, in my view, nobody's business.

Lastly, §89(4)(a) of the Freedom of Information Law pertains to the right to appeal and 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 of the entity, or the person thereof designated by such 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."

While the Sheriff may be the head of the agency, the provision quoted above indicates that an appeal may be made to the head of the agency or the person designated by the head of the agency to determine appeals. In this instance, the correspondence indicates that an appeal may be made to the County Attorney. I believe that such a designation would be appropriate.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Lt. James R. McGuire