January 25, 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 facts presented in your correspondence.


I have received your letter in which you sought clarification in response to your Freedom of Information Law request for records related to DNA testing of your blood sample, specifically test results and testing and storage procedures. The New York State Police denied your request on the ground "that the records you seek are exempt from disclosure by state statute, specifically section 995 of the Executive Law."

By way of background, Executive Law §995-c(3) states that subsequent to conviction and sentencing for certain felonies, a designated offender "shall be required to provide a sample of blood for DNA testing to determine identification characteristics specific to such person and to be included in a state DNA identification index pursuant to this article."

As a general matter, 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. Section 87(2)(a) states in relevant part that an agency may deny access to records that "are specifically exempted from disclosure by state or federal statute."

One such statute, Executive Law §995-d, provides:

"1. All records, findings, reports, and results of DNA testing performed on any person shall be confidential and may not be disclosed or redisclosed without the consent of the subject of such DNA testing. Such records, finding, reports and results shall not be released to insurance companies, employers, or potential employers, health providers, employment screening or personnel companies, agencies, or services, private investigation services, and may not be disclosed in response to a subpoena or other compulsory legal process or warrant, or upon request or order of any agency, authority, division, office, corporation, partnership, or any other private or public entity or person, except that nothing contained herein shall prohibit disclosure in response to a subpoena issued on behalf of the subject of such DNA record or on behalf of a party in a civil proceeding where the subject of such DNA record has put such record in issue.

"2. Notwithstanding the provisions of subdivision one of this section, records, findings, reports, and results of DNA testing, other than a DNA record maintained in the state DNA identification index, may be disclosed in a criminal proceeding to the court, the prosecution, and the defense pursuant to a written request on a form prescribed by the commissioner of the division of criminal justice services. Notwithstanding the provisions of subdivision one of this section, a DNA record maintained in the state DNA identification index may be disclosed pursuant to section nine hundred ninety-five- c of this article."

Based on the foregoing, it appears that the records of your interest may be disclosed only to the extent authorized in subdivision (2) of §995-d.

I note, too, that several aspects of your request refer to the federal Freedom of Information Act, which applies only to federal agencies. For your information, the New York Freedom of Information Law does not include a Vaughn index requirement or provisions concerning the waiver of fees. Lastly, as requested, enclosed are copies of "Your Right to Know" and "You Should Know."

I hope that I have been of assistance.


David Treacy
Assistant Director