October 5, 2005

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 records pertaining to other inmates, including information relating to an incident involving an inmate, as well as a crisis intervention report concerning the incident.

In this regard, I offer the following comments.

Two statutes, the Freedom of Information Law and the Personal Privacy Protection Law (respectively Articles 6 and 6-A of the Public Officers Law), are pertinent to the matter. Due to the language of those statutes, they must be construed together and in relation to one another.

By way of background, the Freedom of Information Law includes within its coverage all agency records and 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.

The Personal Privacy Protection Law deals in part with the disclosure of records or personal information by state agencies concerning data subjects. A "data subject" is "any natural person about whom personal information has been collected by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal information" is defined to mean "any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject" [§92(7)]. For purposes of that statute, the term "record" is defined to mean "any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject" [§92(9)].

With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No agency may disclose any record or personal information", except in conjunction with a series of exceptions that follow. One of those exceptions involves a situation in which a record is "subject to article six of this chapter [the Freedom of Information Law], unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter." Section 89(2)(b) of the Freedom of Information Law includes examples of unwarranted invasions of personal privacy, and §89(2-a) states that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision two of this section if such disclosure is prohibited under section ninety-six of this chapter." Therefore, if a state agency cannot disclose records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the Freedom of Information Law.

I note that a similar issue was reviewed in Kavanagh v. Department of Correctional Services (Supreme Court, Albany County, April 22, 1986). In brief, in that case, a district attorney requested misbehavior reports and their final dispositions pertaining to particular inmate, and it was held that the reports, which included allegations that were not substantiated, could be withheld on the ground that disclosure would result in “personal hardship” to the inmate and constitute “an unwarranted invasion of personal privacy” pursuant to §89(2)(b)(iv) of the Freedom of Information Law.

On the other hand, however, if an inmate was found to have engaged in a violation or misconduct, a final determination reflective of such a finding would, in my view, be accessible. In numerous contexts, it has been advised that records relating to unsubstantiated charges, complaints or allegations may be withheld to protect the privacy of the accused. But when there is a determination indicating misconduct with respect to public employees (with the exception of those employees subject to §50-a of the Civil Rights Law), licensees and others, it has consistently been advised that the determination is accessible, for there is a finding or admission of wrongdoing, and disclosure in those instances would constitute a permissible rather than an unwarranted invasion of personal privacy.

The regulations promulgated by the Department of Correctional Services appear to bolster such a conclusion. In 7 NYCRR §5.21(a), public rights of access are conferred with respect to a variety of items relating to inmates, including commitment information and “departmental actions regarding confinement and release.” Frequently a departmental action based on a finding of misconduct will result in placement in a special housing unit or in solitary confinement. In Bensing v. LeFevre, the issue involved a request for a list of inmates held in a special housing unit, “an area primarily used for housing inmates who have been segregated from the general population for punitive reasons”, and the court rejected contentions under both the Freedom of Information and Personal Privacy Protection Laws that disclosure would constitute an unwarranted invasion of personal privacy [506 NYS2d 822, 823 (1986)]. As such, the court confirmed that the names of those found to have engaged in misconduct, as well as the sanction, placement in a segregated unit, must be disclosed.

In sum, I believe that records involving unsubstantiated allegations may be withheld, but that final determinations reflective findings of misconduct must be disclosed.

I hope that I have been of assistance.


Executive Director


BY: Janet M. Mercer
Administrative Professional