March 6, 2008

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 and apologize for the delay in response.

            With respect to the first issue that you raised, when a request is made and an agency grants access to some of the items sought but denies access to others, it is required to inform the applicant of the denial in writing and that he/she has the right to appeal the denial to the head or governing body of the agency or a person or body designated to determine appeals.  If an agency does not maintain records that have been requested, again, the applicant should be so informed.  I note, too, 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." When you consider it worthwhile to do so, you could seek such a certification.

            Next, the Freedom of Information Law pertains to existing records maintained by or for an agency.  Therefore, if an agency does not maintain certain records that have been requested, it would not be required to create new records or obtain records on behalf of an applicant. 

            Lastly, if a record pertaining to a public employee includes an indication that he/she has been convicted of a felony, I believe that an item of that nature should be disclosed.  By way of background, as you may be aware, government and private entities are in most instances are precluded from asking an applicant for employment whether he or she has been arrested.  Under section 160.50 of the Criminal Procedure, if a person is charged with a crime and the charge is later dismissed in favor of the accused, records relating to the event are sealed.  In my view, the sealing requirement in that situation is intended to ensure that a charge that did not result in a conviction does not result in detriment or hardship to a person who did not admit his or her guilt or against whom the government could not prove guilt.  In contrast, when a person is convicted, the conviction occurs during a public proceeding, and the record of one’s conviction is accessible from a court (see e.g., Judiciary Law, section 255).  That being so, I do not believe that disclosure of information indicating one’s conviction would, if disclosed, constitute an unwarranted invasion of personal privacy [see FOIL, §87(2)(b)].  I note, too, that the state’s highest court, the Court of Appeals, in Johnson Newspaper Corp. v. Stainkamp [94 AD2d 825, 61 NY2d 958 (1984)] held that records of arrest maintained by an agency were accessible, except in those instances in which they were sealed pursuant to section 160.50 of the Criminal Procedure Law.  That being so, I believe that a portion of an employment record pertaining to a public employee indicating that the employee has been convicted of a felony must be disclosed.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director