February 12, 1993
Mr. Terrance McMahon
1818 Hazen Street
East Elmhurst, N.Y. 11370
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. McMahon:
I have received your letter of January 27 in which you
requested assistance concerning access to records.
You wrote that you are interested in obtaining a copy of a
"clemency request" made to the Governor by a member of the news
media on behalf of an inmate.
In this regard, I offer the following comments.
First, §5(3) of the Executive Law states that the Governor
shall keep "[s]eparate registers containing classified statements
of all applications for pardon, commutation or other executive
clemency, and his action thereon". In construing that provision,
it has been held a register must be maintained and made available
"which contains the name of each applicant for a pardon,
commutation or other executive clemency" and that the register must
"indicate whether the application has been granted or denied, or is
still pending" [Rold v. Cuomo, Supreme Court, Albany County, May
Second, although the curt in Rold described the contents of
the register required to maintained and found that it is available
under the Freedom of Information Law, the decision specifies that
"[t]he issue of precisely what portions of a clemency application
may fall within the penumbra of the exceptions to FOIL is beyond
the scope of the proceeding." As such, the court did not deal with
the issue of rights of access to clemency applications and inferred
that such applications could be withheld to the extent that the
grounds for denial appearing in paragraphs (a) through (i) of
§87(2) of the Freedom of Information Law could appropriately be asserted.
While I am unfamiliar with the content of the record in
question, which was apparently prepared by a member of the news
media, it would appear that the most relevant provision would be
§87(2)(b) of the Freedom of Information Law. That provision
authorizes an agency to withhold records to the extent that
disclosure would constitute "an unwarranted invasion of personal
privacy". Under the circumstances, there may be privacy
implications relating to the author of the application, the inmate
and perhaps others. Further, there may be other grounds for denial
or potential significance.
In short, while I believe that the record in which you are
interested is subject to rights conferred by the Freedom of
Information Law, one or more of the grounds for denial might
properly be asserted to withhold the record or portions thereof.
I hope that I have been of some assistance.
Robert J. Freeman