January 8, 2002

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.


I have received your letter in which you requested an advisory opinion concerning the denial of your Freedom of Information Law appeal for copies of records pertaining to you "from the South Carolina Department of Probation, Parole and Pardon Services that are in the possession of the NYS Division of Parole."

The Records Appeals Officer, Terrence Tracy, wrote that:

"...these documents, if any, are exempt from disclosure pursuant to 9 N.Y.C.R.R. §8000.5(c)(2)(i)(b) which provides that access shall not be granted to reports, documents and materials of other agencies. Therefore, your request for these documents is denied."

I respectfully disagree with the substance of the basis for denial offered by Mr. Tracy in response to your appeal. In this regard, I offer the following comments.

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 exceptions to rights of access appearing in §87(2)(a) through (i) of the Law.

The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." From my perspective, there is no statute that would exempt the records in question from disclosure. Section 259-a of the Executive Law requires that the Division of Parole maintain certain kinds of records, and §259-k provides in subdivision (2) 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 of parole." The Division's regulations, 9 NYCRR §8000.5(c), pertain to disclosure of case records maintained by the Division. That provision confers limited rights of access to case records and states in paragraph (2)(i)(b) that "access by the Division of Parole shall not be granted to reports, documents and materials of other agencies, including but not limited to probation reports, drug abuse and alcoholism rehabilitation records, and the DCJS report." Section 8008.2(a) of the regulations defines the phrase "case record" to include: "...any memorandum, document or other writing pertaining to a present or former inmate, parolee, conditional releasee or other releasee, and maintained pursuant to sections 259-a(1)-(3) and 259-c(3) of the Executive Law."

The statutes and regulations that preceded those cited above and which pertained to the Board of Parole when it was part of the Department of Correctional Services included essentially the same direction. However, insofar as the regulations conflicted with the Freedom of Information Law, they were found more than twenty years ago to be invalid. Specifically, 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; see also Morris v. Martin, 440 NYS 2d 1026 (1982)].

In sum, based upon the direction provided judicially, I do not believe that the records in question can be characterized as being exempted from disclosure by statute or that the regulations serve to enable the Department to withhold records that would otherwise be available under the Freedom of Information Law.

I hope that I have been of assistance.



David Treacy
Assistant Director