February 2, 1996
Mr. Kiyoshi Sorara
Legal Affairs Department
5-3-2, Tsukiji, Chou-ku
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. Sorara:
I have received your letter of January 26, and I am pleased that you could attend the International Forum on the Protection of Personal Data in Omiya. I hope that we will continue to share information and knowledge.
You have raised questions concerning the publication of names of persons who have been convicted of crimes. Specifically, you referred to situations in which the name of a person who committed a crime is published, "even if that person has served his/her term in prison" and you asked whether "that is a problem" or an "invasion of privacy."
In this regard, it is noted at the outset that when the news media acquires information, it has the right to publish the information. Under the United States Constitution, there is no significant restriction upon the ability of the media to disseminate news or information, and when the news media acquires records indicating convictions, it is free to publicize those facts, regardless of when the convictions might have occurred.
The difficulty does not involve publishing what is obtained, but rather, in some cases, the ability to obtain the information. As I indicated at the Forum, the federal law may differ from state laws or interpretations. The leading case decided under the federal Freedom of Information Act, which applies only to federal agencies, is U.S. Justice Department v. Reporters Committee for Freedom of the Press [489 U.S. 749 (1989)]. The U.S. Supreme Court in that decision held that "rap sheets", criminal history records, maintained by the Federal Bureau of Investigation in a database serving as repository of those records, 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. The Court also found that records of conviction maintained by the courts were available to the public from the courts. The problem is that without knowledge of the court in which a conviction occurred, it is often difficult to locate conviction records. I have consistently criticized the Court's decision. How could it logically find that a record is public when it is kept by a court, but that disclosure of the same record by a federal agency would result in an unwarranted invasion of privacy?
With respect to records of arrests and convictions in New York, the general repository of those records is the Division of Criminal Justice Services (DCJS), which maintains a centralized database including criminal history information. The functions and duties of that agency are described in Article 35 of the Executive Law, §§835 to 846. In Capital Newspapers v. Poklemba (Supreme Court, Albany County, April 6, 1989), it was held that conviction records maintained by DCJS are confidential in view of the legislative history of the statutes that govern the practices of that agency. Specifically, the first ground for denial in the Freedom of Information Law, §87(2)(a), pertains to records that are "specifically exempted from disclosure by state or federal statute", and it was found that:
"Both the language of the statute and the consistent history of limited access to the criminal records maintained by DCJS lead this court to conclude that an exception to the mandate of FOIL exists with respect to the disclosure sought by petitioner.
"Having determined that POL, §87(2)(a) is applicable to the records sought by petitioner, this court shall not address the issue of whether a further exemption might be had pursuant to POL 87(2)(b) as an unwarranted invasion of personal privacy, or whether the records may be available from any other centralized source."
As such, although the U.S. Supreme Court found that disclosure of a conviction record would constitute an unwarranted invasion of personal privacy in construing the federal Freedom of Information Act, the only court to deal with the issue under the New York Freedom of Information Law reached its conclusion on a different basis. Moreover, the Court inferred that the records should be available from sources other than DCJS, for it was stated that:
"...petitioner is correct when it asserts that the transmittal of an otherwise publicly available document to a centralized facility for inclusion in a government computer bank does not per se render it immune from disclosure. However, the issue is not whether the records under the control of DCJS should be released, but rather whether the provisions of FOIL and the Executive Law, as presently constituted, mandate the result sought by petitioner.
"Certainly, the Legislature has the authority to provide for public access from a centralized location. It is equally clear that, unless otherwise sealed, a conviction record is a public document. Much has been said about potential abuses, given the ease with which these records may be obtained if the petition is sustained. Such fears are not determinative however. To 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. To suggest that public disclosure of conviction records is available only when it is through a difficult and time-consuming search of individual courthouse files or in local police stations, when the exact same information might be freely available if housed within a centralized computer bank, would be to create an irrational burden. Resolution of the question should not be resolved by how hard it is to discover the information sought. However, as aforesaid, the issue is not whether the information should be available, but rather, whether the Division of Criminal Justice Services has been statutorily directed to guard against public disclosure, thereby exempting it from the provision of FOIL" (emphasis added by the court).
Based on the foregoing, the court determined the issue by finding that the records maintained by DCJS were exempted from disclosure by statute, not because disclosure would constitute an unwarranted invasion of personal privacy. Additionally, the court inferred that conviction records are generally available from the courts in which proceedings resulted in convictions were conducted "or in local police stations."
In short, the central databases containing conviction information are beyond the public's rights of access under both the federal and New York State disclosure laws, but for different reasons. Under federal law, disclosure would result in an unwarranted invasion of personal privacy. Under the state law, privacy is not the issue; here, it was found that the statute pertaining to the agency that maintains the database exempts the database from public access. Nevertheless, if conviction information is acquired from another source, such as a court or a police department, the public and the news media can use, publish or disseminate the information without limitation.
I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman