October 8, 2015
I have been contacted by Ms. regarding a redaction from a record sought pursuant to the Freedom of Information Law (FOIL). Specifically, we discussed the propriety of the redaction of a portion of nurse’s license application indicating whether the applicant had been the subject of a criminal conviction. In this regard, this office has consistently advised that a response to a question of that nature as it appears on a record is accessible under FOIL.
In short, when a conviction occurs, it does so during a judicial proceeding in which the public has the ability and the right to be present. A record maintained by a court, a district attorney, or the arresting agency indicating that a person has been convicted is public. In contrast, if a person is arrested and charged, and if the charge is dismissed in favor of the accused, the records relating to the matter are sealed pursuant to §160.50 of the Criminal Procedure Law. The distinction between an arrest and a conviction was made clear by the Court of Appeals in Johnson Newspapers v. Stainkamp [61 NY2d 958 (1984)], in which the Court determined that records indicating convictions are public, while those involving charges that were later dismissed are confidential by statute. Attached is an advisory opinion dealing with rights of access to records involving convictions.
Because the fact of a conviction is public, and in consideration of judicial precedent, this office has consistently advised that the portion of an application for employment or for a license in which an individual indicates whether he or she has been convicted of a crime is public. I believe, too, that the requirement that a person must respond relative to a criminal conviction reflects the public policy of this state to ensure that the public can be assured that public employees and those licensed to perform certain functions of significance to the public are clearly qualified and appropriate to carry out those functions.
I recognize that Ms. was informed of the right to appeal. However, because her right of access to the item in question has been established by the Court of Appeals, it may be more efficient to agree to disclose that item promptly.
Thanks for your consideration.
Bob Freeman Robert J. Freeman
Executive Director Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue Albany, NY 12231