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January 10, 1995

 

 

Mr. Dennis G. O'Hara
O'Hara & O'Connell, P.C.
Suite One Hundred
200 Salina Meadows Parkway
Syracuse, NY 13212-4505

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, unless otherwise indicated.

Dear Mr. O'Hara:

I have received your letter of December 19, 1994 and a variety of materials attached to it. As counsel to the New York State Council of School Superintendents (NYSCOSS) and several school districts, you have sought an advisory opinion concerning public rights of access to "sex offender parolee information" that school districts may receive from the Division of Parole.

According to a memorandum that you prepared for your clients, it is your view that identifying details pertaining to parolees may be deleted from the records in question prior to disclosure. Your opinion is based primarily on provisions of the Freedom of Information Law that authorize agencies to withhold records when disclosure would constitute "an unwarranted invasion of personal privacy", and the decision rendered by the United States Supreme Court in Reporters Committee for Freedom of the Press v. U.S. Department of Justice [489 U.S. 749 (1989)].

As you are aware, 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. In my opinion, the sole issue is whether disclosure of personally identifying details would constitute "an unwarranted invasion of personal privacy" in accordance with §§87(2)(b) and 89(2) of the Freedom of Information Law.

In a recent annual report (December, 1992), the Committee on Open Government considered that standard and whether it remains viable. To provide perspective on the matter, I offer the following excerpt from the report:

"When the Committee's director gives a presentation and reviews the law, he always asks whether anyone in the crowd knows what an unwarranted invasion of personal privacy is. Nobody raises their hands. He says that's okay, because nobody knows what it means, and because everybody has a different line of demarcation between what is considered to be offensive as opposed to innocuous. Two equally reasonable people looking at the same items of personal information will disagree -- one might say that he or she would not want a certain item of information to be disclosed, the other says 'who cares' -- and never the twain shall meet. If a reporter asks the director for his home phone number, he provides it; his number is in the phone book. However, his wife is in an unrelated profession, as she uses her maiden name professionally and a different phone number for that aspect of her life.

"In terms of the standard itself, it is virtually the same in every access law. The federal Freedom of Information Act refers to a 'clearly unwarranted invasion of personal privacy'; some statutes refer to 'unreasonable' invasions of personal privacy. The point is that there are no words that can be used to deal with every conceivable instance in which privacy is an issue, and it is doubtful that any 'standard' would be better than what we have now. Further, from our perspective, vagueness may be the equivalent of flexibility, and flexibility may be more appropriate as society and community mores change.

"When government officials deal with the standard, the reality is that somebody at an agency must often make subjective judgments. Obviously not every invasion of privacy is 'unwarranted'; some invasions of privacy are permissible.

In consideration of preceding commentary, it is the Committee's view that the phrase "unwarranted invasion of personal privacy" cannot be precisely defined. While that may be so, the standard offers flexibility that may be needed to deal with varying factual situations and changes in the ways that society in general deals with issues. Representatives of school districts, the news media and the State Legislature have contacted me to discuss the issue that is the subject of your inquiry. What is clear is there is disagreement and that opposing points of view may each have merit. While I believe that my opinion is supported by law and logic, it is just that, an opinion. For reasons to be expressed in the following paragraphs, I believe that the records in question, including personally identifying details pertaining to parolees, must be disclosed, for there is nothing in the records sent to school districts by the Division of Parole of which I am aware that is not available from other government sources.

Having contacted the Division of Parole to attempt to learn of the nature of information it transmits to school districts, I received a copy of a letter dated January 9 sent to superintendents by Martin F. Horn, Executive Director of the Division, following consultation with James O'Connell, Executive Director of NYSCOSS. Mr. Horn described the Division policy regarding sex offender notification to school districts and indicated that a notification includes "a photograph of the offender and pertinent and appropriate information." He referred to provisions dealing with unwarranted invasions of personal privacy and specified that the Division "does not make information about the releasee's employment, family, precise home address, or medical or mental health history generally available." Similarly, in the Division's November, 1994 "Guidelines for the Supervision of Sex Offenders", the section involving notification to school districts indicates that the Division "shall not reveal the residence or address of the releasee." That section also states that:

"Certain information, such as the name of the subject, the crime of conviction, the sentence, and the fact that the subject is currently under parole supervision, is a matter of public record, and accordingly, may be shared with the school administrators and the public-at-large."

In addition, the Guidelines state that in order to accomplish notification, an area supervisor or designated senior parole officer:

"is to provide a cover form...indicating how the agency administrators might utilize the information contained in the package being given to them. The accompanying information is to include limited background data, i.e., name, physical description, the crime of conviction, M.O., type of victim targeted by the subject, a current photograph, and special conditions imposed, especially any requiring the subject to remain a specified distance away from schools and/or child care facilities."

As a sample of action taken by a superintendent following receipt of notification of the release of a parolee, appended to the Guidelines and the cover form is a letter addressed to parents and guardians in the District. While I am not suggesting that similar action should necessarily be taken, the introductory paragraphs of that letter state that:

"As many of you may have already learned from local media, a man convicted of murdering a child in 1947 and later of molesting an adolescent boy was scheduled to receive his conditional release from state prison today and to move into a Glenmont neighborhood within our school district.

"_______________ has been placed under tight parole supervision and will be required to wear an electronic monitoring ankle bracelet. He must obey a 6 p.m. to 9 a.m. curfew and is prohibited from going within 100 feet of a public place where children congregate."

As such, the superintendent was given and disclosed to the public information reflective of certain conditions of one's parole that had been transmitted by the Division of Parole.

In conjunction with the foregoing, I offer the following analysis.

First, of relevance is the Personal Privacy Protection Law, which deals in part with the disclosure of records or personal information by agencies concerning data subjects. The term "agency" is defined for purposes of that statute to mean a state agency, and the definition specifically excludes units of local government [see Personal Privacy Protection Law, §92(1)]. Therefore, although the Personal Privacy Protection Law may preclude the Division of Parole, for example, from disclosing certain personal information, that statute does not apply to a school district. A "data subject" is "any natural person about whom personal information has been collected by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal information" is defined to mean "any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject" [§92(7)]. For purposes of that statute, the term "record" is defined to mean "any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject" [§92(9)].

With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No agency may disclose any record or personal information", except in conjunction with a series of exceptions that follow. One of those exceptions involves when a record is "subject to article six of this chapter [the Freedom of Information Law], unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter". It is noted, too, that §89(2-a) of the Freedom of Information Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision two of this section if such disclosure is prohibited under section ninety-six of this chapter". Therefore, if a state agency cannot disclose records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the Freedom of Information Law. Section 96(1) of the Personal Privacy Protection Law limits the circumstances under which state agency may disclose personally identifiable information. The only provision in my opinion that would permit the Division of Parole to disclose information identifiable to parolees to a school district would involve §96(1)(c), which authorizes disclosure when personal information is available under the Freedom of Information Law, i.e., when disclosure would not constitute an unwarranted invasion of personal privacy. If release of the information in question by the Division of Parole to school districts does not constitute an unwarranted invasion of personal privacy, logically, the same conclusion would be reached when the same information is maintained by or requested from a school district.

Second, in your memorandum, there appears to be some reliance on §259-k of the Executive Law, which in subdivision (2) states that the Board of Parole "shall make rules for the purpose of maintaining the confidentiality of records, information contained therein and information obtained in an official capacity by officers, employees or members of the division or board of parole." The rules are found in 9 NYCRR §8000.5, entitled "Parole records." They describe procedures concerning the release of case records and state in subdivision (d) that: "Any record of the Division of Parole not made available pursuant to this section shall not be released, except by the chairman upon cause."

While my intent here is not to question the validity of the rules and regulations promulgated by the Division of Parole, I do not believe that those provisions or §259-k of the Executive Law affect the ability of a school district to grant or deny access to the district's records. Once records come into possession of a school district, they are the district's records and are subject to rights conferred by the Freedom of Information Law. Moreover, it was held that a similar limitation on disclosure was invalid insofar as it conflicted with rights of access conferred by the Freedom of Information Law as originally enacted. Although the provisions cited in the ensuing passage may no longer be in effect, the situation appears to be analogous in terms of its effect on the Division's current rules. In Zuckerman v. Board of Parole, the court found that:

"Section 221 of the Correction Law, entitled 'Records', requires the commissioner to keep complete records 'of every person released on parole or conditional release'. The statute also requires the commissioner to make rules as to the privacy of these records. Under the authority of these two statutory mandates (7 NYCRR 5.1 [a], the following regulation was promulgated: 'Department records. Any department record not otherwise made available by rule or regulation of the department shall be confidential for the sole use of the department.' (7 NYCRR 5.10). The minutes of board meetings are not 'made available by rule or regulation' and, therefore, Special Term held that the minutes are private.

"It would seem clear that section 29 of the Correction Law exempts from disclosure those specifically enumerated statistics and, further, that section 221 exempts those records dealing with parolees. Minutes of Parole Board meetings are not specifically exempted by either of these statutes. Applying the rule of ejusdem generis (McKinney's Cons Laws of NY, Book 1, Statutes, §239, subd b), the nonexclusive list contained in subdivision 1 of section 29 of the Correction Law could not be construed to include those minutes.

"It would therefore appear that this regulation, as applied to the minutes of Parole Board meetings, is invalid on two grounds. As shown above, the regulation makes all records private initially and is not limited solely to those categories of information specifically set forth or included by reasonable implication in the statutes. Furthermore, by making all records initially confidential in a broad and sweeping manner, the regulation violates the clear intention of the Freedom of Information Law (see Public Officers Law, §85). It is established as a general proposition that a regulation cannot be inconsistent with a statutory scheme (see e.g. Matter of Broadacres Skilled Nursing Facility v. Ingraham, 51 AD2d 243, 245-246)...This conclusion is further reinforced by the general rule that public disclosure laws are to be liberally construed...[53 AD 2d 405, 407(1976); emphasis supplied by the court]."

Further, as I understand them, §259-k and the regulations apply to the Division of Parole, and its officers and employees; they do not bind school districts.

Finally on this issue, as suggested earlier, if disclosure of the records forwarded to school districts is accomplished in compliance with the Personal Privacy Protection Law, it must be concluded that the disclosures constitute permissible invasions of privacy; otherwise the Division of Parole would be disclosing in a manner inconsistent with law. In view of Mr. Horn's letter and the Guidelines referenced earlier, it appears that the Division's activities regarding notification are fully consistent with law.

Third, I do not believe that the holding by the U.S. Supreme Court in Reporters Committee, supra, could be characterized as precedential or controlling. As indicated in your memorandum, the Court in that decision held that "rap sheets", criminal history records, maintained by the Federal Bureau of Investigation were not subject to disclosure under the federal Freedom of Information Act. Its rationale was based on the conclusion that the purpose of the federal Act is to give the public the right to know of government's actions, and that since the disclosure of the personal information contained in a rap sheet revealed nothing about an agency's actions, an agency could withhold the information based on considerations of privacy. Under Reporters Committee, it would appear that records may be withheld on the ground that disclosure would result in an unwarranted invasion of personal privacy, unless the record sheds light on some governmental activity.

Nevertheless, the State's highest court has construed New York's Freedom of Information Law more expansively. In Capital Newspapers v. Whalen [69 NY 2d 246 (1987)], the Court of Appeals noted that: "The Appellate Division held that the Legislature intended to subject to disclosure only those records which revealed the workings of government...(id., 250). In rejecting and reversing the decision of the Appellate Division, the Court of Appeals relied heavily on the specific language of the Freedom of Information Law, particularly the definition of the term "record". The New York Freedom of Information Law applies to all agency records, and §86(4) defines the term "record" broadly 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." The federal Act does not define "record" and federal courts have continually grappled with issue and considered the source, the authorship and the function of documents in considering whether they fall within the coverage of the Act.

In contrast, in Capital Newspapers, the Court of Appeals in responding to the agency's contentions that the State Freedom of Information Law should be so narrowly construed wrote that:

"They argue that the Legislature intended that only records dealing with the governmental decision-making process should be subject to disclosure under FOIL not papers outside this category such as private papers of governmental employees. It is quite true, as respondents urge, that we are not bound to accord a literal interpretation to a statutory definition if to do so would lead to an unreasonable result or defeat the general purpose and manifest policy intended to be promoted see, Matter of Petterson v. Daystrom Corp., 17 NY2d 32, 38), and that in the interpretation of statutes the 'legislative intent is the great and controlling principle' (People v. Ryan, 274 NY 149, 152)...On the contrary, respondent's narrow construction would be inimical to the public policy underlying FOIL and would conflict with the legislative intent which is apparent in the language of the statute as a whole and in the detailed procedures established in FOIL for designating documents which should properly be exempt. Moreover, the construction, if given effect, could, as a practical matter, frustrate the very purpose of the legislation.

"It is settled that FOIL is based on the overriding policy consideration that 'the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government' (Matter of Fink v. Lefkowitz, 47 NY2d 567, 571). Indeed, in enacting FOIL the Legislature specifically declared: 'that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.' (Public Officers Law §84.) We have held, therefore, that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government (see, Matter of Washington Post Co. v. New York State Ins. Dept., 61 NY2d 557,564, citing Matter of Fink v. Lefkowitz, supra, at p 571). It is evident that the narrow construction respondents urge is contrary to these decisions and antagonistic to the important public policy underlying FOIL.

"Nevertheless, respondents seek to read into the definitions of 'record' and 'agency' a requirement that, for documents to be within FOIL's scope, their subject matter must evince some governmental purpose. There is, however, no language in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term 'record'. On the contrary, we held in Matter of Westchester Rockland Newspapers v. Kimball (50 NY2d 575, 581) that FOIL's scope is not to be limited based on 'the purpose of which the document was produced or the function to which it relates" (id., 252-253).

Lastly, in conjunction with my initial comments, I refer to a decision cited in your memorandum, Dobranski v. Houper (154 AD 2d 736 (1989)]. In Dobranski, it was found that the test for determining what constitutes an unwarranted invasion of personal privacy is "what would be offensive and objectionable to a reasonable man of ordinary sensibilities", and that such a determination involves "balancing the competing interests of public access and individual privacy" (id., 737). I concur with the standards described in Dobranski and, for that and reasons previously discussed, advise that the records at issue must be disclosed, on request, by a school district.

As suggested earlier, there is nothing in those records that is not available from other government sources. I recognize in good faith that a similar position was taken regarding criminal history records and that it was held that those records maintained by the Division of Criminal Justice Services were beyond the scope of rights conferred by the Freedom of Information Law. However, in Capital Newspapers v. Poklemba Supreme Court, Albany County, April 6, 1989), the decision was based on a finding that certain provisions of the Executive Law, based upon a review of their legislative history and intent, specifically exempted the records from disclosure, and that the records, therefore, were deniable under §87(2)(a) of the Freedom of Information Law. It is noteworthy that the court specified that it did not address the issue of whether disclosure would constitute an unwarranted invasion of personal privacy and stated that "It is ...clear that, unless otherwise sealed, a conviction record is a public document" and that "[t]o argue that a criminal conviction obtained in a public proceeding in an open court system suddenly should be clothed with secrecy merely because an individual doesn't have to struggle to obtain it, makes a mockery of the right of public access." Based on the foregoing, I believe that Capital Newspapers v. Poklemba restricts public access to records maintained by the Division of Criminal Justice Services, even though they are obtainable elsewhere, due to a statute that applies solely and specifically to that agency.

I also believe, however, that as a general rule, if records are available as of right from one governmental source, they must be disclosed by another governmental source that maintains the same or equivalent records.

In this regard, parolees were the subjects of public judicial proceedings. Members of the public could have been present during those proceedings, and records of those proceedings, including reference to the crimes for which individuals were convicted and their sentences, are available from the courts [see e.g., Judiciary Law, §§4 and 255]. A defendant in a criminal proceeding may be seen by anyone present, and it has been held that photographs of those persons are available under the Freedom of Information Law, except when those records are sealed because charges against persons charged have been dismissed in their favor [Planned Parenthood v. Town Board of the Town of Greenburgh [587 NYS 2d 461 (1992)]. Determinations to grant, deny or revoke parole are available from the Division of Parole under the Freedom of Information Law [see §87(2)(g)(iii)]. As suggested in the materials sent to me by the Division of Parole, special conditions (i.e., a prohibition from being within certain distance of a school) would be part of such determinations and, therefore, would be public. Further, aside from court records, other provisions of law requiring the disclosure of information analogous to if not more personal than that sent to school districts by the Division of Parole. For instance, when an individual is confined in a county jail, a record of commitments and discharges that includes a substantial amount of personal information must be maintained and made available. Specifically, §500-f of the Correction Law 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."

Similarly, a section of the regulations promulgated by the Department of Correctional Services requires the disclosure of a variety of information to the news media about inmates. Section 5.21 of the regulations provides in relevant part that:

"Upon request by the news media, the following information from an inmate record shall be made available: name, age, birthdate, birthplace, city of previous residence, physical description, commitment information, present facility in which housed, departmental actions regarding confinement and release, and when related to a newsworthy event, institutional work assignments, general state of health, nature of injury or critical illness and cause of death."

I point out that the news media has no special rights under the Freedom of Information Law and that the same information would be available to any person.

In sum, since the information about paroles transmitted to school districts is obtainable from other sources, I do not believe that it could justifiably be claimed that disclosure would constitute an unwarranted invasion of personal privacy when it is maintained by or requested from a school district.

Lastly, while the records in question are clearly available in my view, the Freedom of Information Law would not prohibit a school district from disclosing even if a ground for denial existed. As stated by the Court of Appeals:

"while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY 2d 562, 567 (1986); see also, Buffalo Teachers Federation v. Buffalo Board of Education, 156 Ad 2d 1027 (1990)]."

If you would like to discuss the matter, please feel free to contact me. I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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