June 13, 2001


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


I have received your letter requesting an opinion on the availability of certain records
pertaining to your parole hearing. I have also received a copy of the Division of Parole's response
to your appeal.

According to your correspondence, you requested records indicating a dismissal of charges
of second degree murder. Your requests have been denied by the Inmate Records Access Officer
and the Division of Parole. In this regard, I offer the following comments.

First, with respect to your request for a letter from the District Attorney to the Division of
Parole indicating the charge of second degree murder. The Division determined that the record was
exempt from disclosure under §87(2)(g) of the Freedom of Information Law.

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)(g) permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that
are reflective of opinion, advice, recommendation and the like could in my view be withheld.

Second, the Division's response to your appeal states that the District Attorney's letter is
summarized in a portion of an Inmate Status Report that is exempt from disclosure. I am unfamiliar
with the contents of such report and, therefore, cannot offer specific guidance on this issue.
However, I offer the following comments on the portion of the Division's response that states
"[p]ursuant to the Mental Hygiene Law §33.13, any mental health records and information that the
Division may have in it [sic] file relative to your mental health, or any treatment you may have
received for a mental health problem, are statutorily exempt from disclosure."

Although the Freedom of Information Law provides broad rights of access, the first ground
for denial, §87(2)(a), pertains to records that are "specifically exempted from disclosure by state or
federal statute." One such statute is §33.13 of the Mental Hygiene Law, which generally requires
that clinical records pertaining to persons receiving treatment in a mental hygiene facility be kept

However, §33.16 of the Mental Hygiene Law pertains specifically to access to mental health
records by the subjects of the records. Under that statute, a patient may direct a request for
inspection or copies of his or her mental health records to the "facility", as that term is defined in the
Mental Hygiene Law, which maintains the records. If the Washington Correctional Facility
maintains the records as a facility, I believe that it would be required to disclose the records to you
to the extent required by §33.16 of the Mental Hygiene Law. Alternatively, it is possible that the
records in question were transferred when you were placed in a state correctional facility. If that is
so, the records may be maintained by a different agency. It is my understanding that mental health
"satellite units" that operate within state correctional facilities are such "facilities" and are operated
by the New York State Office of Mental Health. Further, I have been advised that requests by
inmates for records of such "satellite units" pertaining to themselves may be directed to the Director
of Sentenced Services, Bureau of Forensic Services, Office of Mental Health, 44 Holland Avenue,
Albany, NY 12229. Lastly, it is noted that under §33.16, there are certain limitations on rights of

Next, it is noted that the Division of Parole's regulations prohibit the release of records
received and/or prepared by another agency. In my view, an agency's regulations cannot diminish
rights of access conferred by a statute, such as the Freedom of Information Law [Zuckerman v. NYS
Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976), Morris v. Martin, Chairman of theState
Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026

Lastly, the Division also addressed your request for the Division of Criminal Justice Services'
rap sheet and states that this document is also exempt from disclosure.

With respect to criminal history records, the general repository of those records is the
Division of Criminal Justice Services. While the subject of a criminal history record may obtain
such record from the Division, it has been held that criminal history records maintained by that
agency are exempted from public disclosure pursuant to §87(2)(a) of the Freedom of Information
Law [Capital Newspapers v. Poklemba, Supreme Court, Albany County, April 6, 1989]. If you seek
access to your own rap sheet, it is suggested that you submit your request to the Division of Criminal
Justice Services.

I hope that I have been of assistance.



David M. Treacy
Assistant Director


cc: Terrence X. Tracy