FOIL-AO-19546

March 10, 2017

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, except as otherwise indicated.

Dear Ms. :

We are in receipt of your request for an advisory opinion regarding the manner in which the Montgomery County Sheriff’s Office (County) responded to your Freedom of Information Law request for records reflecting information required to be maintained pursuant to Correction Law §500-f.   

In response to your request for data maintained by the County relating to inmates in the County jail, the County provided a responsive record but withheld information relating to inmates’ race and/or ethnicity on the ground that disclosure would constitute an unwarranted invasion of personal privacy (§87(2)(b) of FOIL).

As you are aware, FOIL 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 (o) of the Law.  Further, §89(6) of FOIL states that “[n]othing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity of any party to records.”

One such “right of access at law” is conferred by §500-f of Correction Law.  Correction Law Article 20, which includes §500-f, pertains to “all local correctional facilities” (§500 of Correction Law) and §500-f states:

“’Record of commitments and discharges.  Each keeper shall keep a  daily  record,  to  be  provided at the expense of the county, of the commitments and discharges of all prisoners delivered to his charge, which shall  contain the date of entrance, name, offense, term of sentence, fine, age, sex,  place  of  birth, color, social  relations, education, secular and religious, for what and by whom committed, how and when discharged, trade  or  occupation,  whether  so  employed  when arrested,  number  of  previous convictions. The daily record shall be a public record, and shall be kept permanently in the office of the keeper.” (emphasis mine)

While an argument could be made that disclosure of information relating to an individual such as age, race, and religious affiliation would normally constitute an unwarranted invasion of personal privacy, §500-f of Correction Law specifically requires that this type of information “shall be a public record,” and §89(6) of FOIL states that nothing in FOIL, including the exemptions set forth in §87(2) of the Law, “shall be construed to limit or abridge” rights of access afforded by other laws. 

In our opinion, it is inconsistent with law for the County to deny access to any of the information required to be maintained and made available pursuant to §500-f of the Correction Law (or any analogous information, i.e., race and ethnicity) on the ground that disclosure would constitute an unwarranted invasion of personal privacy.  We also note that in the County’s December 29, 2016 letter, it indicated that it would deny access to “release information” on the basis that disclosure could endanger the life or safety of any person (§87(2)(f) of FOIL).  For the same reasons set forth above, we believe it would be inconsistent with law for the County to deny access to any information required to be maintained and made available pursuant to §500-f of the Correction Law on the ground that disclosure could endanger the life or safety of any person. 

I hope that I have been of assistance.

Sincerely,

Kristin O’Neill
Assistant Director

cc:  Michael J. Amato, Montgomery County Sheriff  
Matthew Ossenfort, Montgomery County Executive