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January 5, 1996

 

 

Mr. Ernest Dunham
94-B-0574
Attica Correctional Facility
P.O. Box 149
Attica, NY 14011-0149

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.

Dear Mr. Dunham:

I have received your letter of December 8 and the materials attached to it.

According to the correspondence, you requested an "Attorney's Visitation Sheet" indicating visits between you and your attorney at the Monroe County Jail during a period of approximately a year and a half beginning in November of 1993. In response, you were informed that no such record is maintained. It is your view that such a record is required to be maintained by a local correctional facility pursuant to §7008.5 of the regulations promulgated by the State Commission of Correction. That provision states in relevant part that properly identified persons may visit prisoners and that:

"Each visitor shall be required to enter in a facility visitor's log: (1) his name; (2) his address; (3) the date; (4) the time of entry; (5) the name of the prisoner or prisoners to be visited; and (6) the time of exit."

Based on the foregoing, you have asked that this office "intervene and conduct [an] inquiry" into the claim that the record sought does not exist. If the record has not been maintained, you contend that such failure "violates not only the law itself, but also [your] rights under the freedom of information law to access to information."

In this regard, the Committee has neither the resources nor the authority to conduct an investigation concerning the existence of a record. That issue does not pertain directly to compliance with the Freedom of Information Law; rather, it deals with compliance with regulations promulgated by the Commission of Correction. Consequently, if indeed a visitor's log is not maintained, it is suggested that you contact the Commission to encourage that entity to seek to enforce its regulations.

It is possible, too, that your request was considered narrowly and literally. Instead of referring to the record in question as the "Attorney's Visitation Sheet", for there may be no record so characterized, it is suggested that you renew your request and refer to §7008.5 of the Commission's regulations and the visitor's log required to be maintained pursuant to that provision.

Assuming that visitor's log is maintained, I believe that it would be subject to rights of access conferred by the Freedom of Information Law. As a general matter, that statute 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.

If a visitor's log or similar documentation is kept in plain sight and can be viewed by any person, and if the staff at the facility have the ability to locate portions of the log of your interest, 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 those portions of the log pertaining to persons other than yourself 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.

A potential issue involves the requirement imposed by §89(3) of the Freedom of Information Law that an applicant "reasonably describe" the records sought. In considering that standard, the State's highest court has found that to meet the standard, the terms of a request must be adequate to enable the agency to locate the records, and that an agency must "establish that 'the descriptions were insufficient for purposes of locating and identifying the documents sought'...before denying a FOIL request for reasons of overbreadth" [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 or record-keeping systems. 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 this instance, I am unaware of the means by which a visitor's log, if it exists, is kept or compiled. If an inmate's name or other identifier can be used to locate records or portions of records that would identify the inmate's visitors, it would likely be easy to retrieve that information, and the request would reasonably describe the records. On the other hand, if there are chronological logs of visitors and each page would have to be reviewed in an effort to identify visitors of a particular inmate, I do not believe that agency staff would be required to engage in such an extensive search.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Robert J. Squires