May 8, 1998


Ms. Geri Pomerantz
Staff Attorney
Prisoners' Legal Services of New York
205 South Avenue - Suite #200
Poughkeepsie, NY 12601

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, unless otherwise indicated.

Dear Ms. Pomerantz:

As you are aware, I have received your letter of April 10 and the materials attached to
it. You have sought an advisory opinion concerning the denial of requests by your clients
for records of the Department of Correctional Services.

In brief, you referred to the "3-tier disciplinary system" established in the regulations
promulgated by the Department of Correctional Services. You wrote that "Tier III
hearings [are] reserved for the more serious alleged transgressions", and you added that:

"A taped record and several documents are generated as a result of a
Tier III hearing, including but not limited to a Misbehavior Report,
written disposition, hearing record sheet, and any documentary
evidence considered by the Hearing Officer.

"When a Hearing Officer dismisses all charges brought against a
prisoner, all references to the charges must be expunged from the
prisoner's institutional records and the hearing record is retained in a
file marked æsealed' at the prison. Such records are retained for a
period of three years...

"A prisoner has a regulatory right to appeal an adverse Tier III
hearing. The Commissioner's designee, Donald Selsky, Director of
Special Housing, decides those appeals. When a hearing is reversed
upon appeal, at least three documents are created by the Office of
Special Housing: (1) Review of Superintendent's Hearing, indicating
the date the hearing was reviewed and the decision upon
administrative appeal (e.g., æreversed'); (2) a memorandum from
Donald Selsky to the facility Superintendent setting forth the reason
for the reversal of the Tier III hearing (e.g., æThe determination was
not supported by substantial evidence'); and (3) a memorandum from
Donald Selsky to the Inmate Records Coordinator at the facility
advising that the hearing was reversed and directing the expungement
of the appropriate material from the inmates' records...In accordance
with DOCS' procedures, records of administratively reversed
Superintendent's Hearings should be submitted to Donald Selsky for
retention, and all references to the reversed hearing should be
removed from the inmate's records. Hearing tapes, however, are
retained at the prison and marked æexpunged'."

You represent prisoners who were found to have engaged in misconduct, but whose
charges were later dismissed at Superintendent's Hearings. One request involved an
attempt to obtain "the document setting forth the reason for the administrative reversal of
the tier III hearing." That request was denied on the ground that "once records are
expunged, they are deemed to no longer exist" and that "no document exists which is
responsive to your request." Another involved an effort to obtain a record of the
Superintendent's hearing. Again, the request was denied on the ground that the
records were "deemed not to exist." You have contended, based on the policies and
practices of the Department, that the records are retained for a period of time and should
be disclosed to prisoners or their legal representatives, even though they are essentially
sealed from public view and are "deemed not to exist".

In this regard, I offer the following comments.

First, assuming that the requested materials do in fact exist, I believe that they would
constitute "records" subject to the Freedom of Information Law, even if they are "sealed"
and despite the claim that they are "deemed not to exist." It is emphasized that the
Freedom of Information Law pertains to all agency records and that º86(4) of the Law
defines the term "record" expansively to mean:

"any information kept, held, filed, produced, reproduced by, with or
for an agency or the state legislature, in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, folders, files, books, manuals, pamphlets,
forms, papers, designs, drawings, maps, photos, letters, microfilms,
computer tapes or discs, rules, regulations or codes."

In a case in which an agency claimed, in essence, that it could choose which documents
it considered to be "records" for purposes of the Freedom of Information Law, the state's
highest court rejected that contention. As stated by the Court of Appeals:

"...respondents' construction -- permitting an agency to engage in a
unilateral prescreening of those documents which it deems to be
outside the scope of FOIL -- would be inconsistent with the process
set forth in the statute. In enacting FOIL, the Legislature devised a
detailed system to insure that although FOIL's scope is broadly
defined to include all governmental records, there is a means by which
an agency may properly withhold from disclosure records found to be
exempt (see, Public Officers Law º87[2]; º89[2],[3]. Thus, FOIL
provides that a request for access may be denied by an agency in
writing pursuant to Public Officers Law º89(3) to prevent an
unwarranted invasion of privacy (see, Public Officers Law º89[2]) or
for one of the other enumerated reasons for exemption (see, Public
Officers Law º87[2]). A party seeking disclosure may challenge the
agency's assertion of an exemption by appealing within the agency
pursuant to Public Officers Law º89(4)(a). In the event that the
denial of access is upheld on the internal appeal, the statute
specifically authorizes a proceeding to obtain judicial review pursuant
to CPLR article 78 (see, Public Officers Law º89[4][b]).
Respondents' construction, if followed, would allow an agency to
bypass this statutory process. An agency could simply remove
documents which, in its opinion, were not within the scope of the
FOIL, thereby obviating the need to articulate a specific exemption
and avoiding review of its action. Thus, respondents' construction
would render much of the statutory exemption and review procedure
ineffective; to adopt this construction would be contrary to the
accepted principle that a statute should be interpreted so as to give
effect to all of its provisions...

" a practical matter, the procedure permitting an unreviewable
prescreening of documents -- which respondents urge us to engraft on
the statute -- could be used by an uncooperative and obdurate public
official or agency to block an entirely legitimate FOIL request. There
would be no way to prevent a custodian of records from removing a
public record from FOIL's reach by simply labeling it 'purely private'.
Such a construction, which could thwart the entire objective of FOIL
by creating an easy means of avoiding compliance, should be rejected"
[Capital Newspapers v. Whalen, 69 NY 2d 246, 253-254 (1987)].

If they continue to exist, a claim that the materials are not records subject to the
Freedom of Information Law would in my opinion clearly conflict with the interpretation
of that statute by the State's highest court.

Second, in a related vein, an assertion or claim of confidentiality, unless it is based
upon a statute, is likely meaningless. When confidentiality is conferred by a statute, an act
of the State Legislature or Congress, records fall outside the scope of rights of access
pursuant to º87(2)(a) of the Freedom of Information Law, which states that an agency
may withhold records that "are specifically exempted from disclosure by state or federal
statute". If there is no statute upon which an agency can rely to characterize records as
"confidential" or "exempted from disclosure", the records are subject to whatever rights of
access exist under the Freedom of Information Law [see Doolan v.BOCES, 48 NY 2d 341
(1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News
Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780
(1979)]. As such, an assertion of confidentiality without more, would not in my view
serve to enable an agency to justify withholding a record. In this instance, I am unaware
of any statute that would render the report exempted from disclosure by statute. It is also
noted that it has been held that a rule or regulation promulgated by an agency cannot be
cited as a "statute" that would serve to exempt records from disclosure [see Morris v.
Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365,
82 AD 2d 965, reversed 55 NY 2d 1026 (1982) and Zuckerman v. NYS Board of Parole,
385 NYS 2d 811, 53 AD 2d 405 (1976)].

Third, 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 º87(2)(a) through (i) of the Law. In this instance, those seeking the records
are the subjects of the records. While I believe that the Department could withhold the
records if requested by others (i.e., on the ground that disclosure would constitute an
unwarranted invasion of personal privacy), it does not appear that any of the grounds for
denial could properly be asserted to withhold the records from the subjects of the records.

Lastly, I note that when an agency indicates that it does not maintain or cannot locate a
record, an applicant for the record may seek a certification to that effect. Section 89(3) of
the Freedom of Information Law provides in part that, in such a situation, on request, an
agency "shall certify that it does not have possession of such record or that such record
cannot be found after diligent search."

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Anthony J. Annucci
William M. Gonzalez