July 25, 1994



Ms. Stacy Sears
c/o Mrs. Paul J. Sisak
R.D. 1, Box 695C
Canadensis, PA 18325

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. Dear Ms. Sears:

As you are aware, your letter of July 7 addressed to Attorney General Koppell, has been forwarded to the Committee on Open Government. The Committee, a unit of the Department of State, is authorized to provide advice concerning the Freedom of Information Law.

In brief, you requested "any records of arrest" pertaining to three individuals from the Greene County Sheriff's Department. You were informed by the Department that the records sought "can only be release [sic] from this Department by Authorization for Release of Personal Information form." While I do not fully understand that statement, I offer the following comments.

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.

With regard 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]. Nevertheless, if, for example, criminal conviction records were used in conjunction with a criminal proceeding by a district attorney, it has been held that the district attorney must disclose those records [see Thompson v. Weinstein, 150 AD 2d 782 (1989); also Geames v. Henry, 173 AD 2d 825 (1991)]. It is also noted that while records relating to convictions may be available from the courts or other sources, when charges are dismissed in favor of an accused, records relating to arrests that did not result in convictions are generally sealed pursuant to §160.50 of the Criminal Procedure Law.

Another possible source of records concerning convictions is the record of commitments and discharges kept at the County jail. Section 500-f of the Correction Law, which pertains to county jails, states that: "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."

Based on the foregoing, although you may be unable to obtain an individual's complete arrest and conviction record, the commitment and discharge record described above includes a variety of information, including the "number of previous convictions."

I regret that I cannot be of greater assistance.



Robert J. Freeman
Executive Director


cc: C.O. Scandaliato