October 19, 1994



Mr. Ricardo A. DiRose
Box 2000
Pine City, NY 14871

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 Mr. DiRose:

I have received your letter of September 16 in which you requested an advisory opinion.

According to your letter, following a disciplinary proceeding, you were found to have violated correspondence procedures by mailing a birthday card "to an individual who was discovered to be incarcerated in Florida." You wrote that it is a violation for an inmate to correspond with another inmate without permission to do so. You alleged that you did not know that the person was incarcerated, which would be "shown by the address on the envelope you mailed out." Your initial request for a photocopy of the envelope was denied, and Counsel to the Department of Correctional Services sustained the denial even though you bought the card in the facility commissary and addressed it yourself. In the determination of your appeal, it was found that "the requested document is exempted from disclosure because it has been classified as 'contraband'." In addition, the request was denied pursuant to §87(2)(f) of the Freedom of Information Law because "the requested material...poses a threat to the security of the facility."

In this regard, I offer the following comments.

First, from my perspective, the issue of substance is whether your request involves a "record" that falls within the scope of the Freedom of Information Law as opposed to an item of physical evidence. The Freedom of Information Law is applicable to agency records, and §86(4) of the Law defines the term "record" to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

If the envelope constitutes a "record", I believe that it would be subject to rights conferred by the Freedom of Information Law. Conversely, it has been held that items of physical evidence (i.e., tools and clothing) do not constitute records and are beyond the coverage of the Freedom of Information Law [Allen v. Stroynowski, 129 AD 2d 700; mot. for leave to appeal denied, 70 NY 2d 871 (1989)].

An envelope on which writing appears may be contraband, but it would also appear to constitute a "record", and Counsel referred to the envelope in his determination as a "document".

If indeed the envelope can be characterized as a record, I do not believe, under the circumstances, that your request could properly have been denied. As you indicated, you had possession of the envelope and wrote whatever appears on it. Further, I would conjecture that you maintain among your personal effects (i.e., an address book) information consisting of the same name and address that are written on the envelope. In short, it is difficult to envision how disclosure of an envelope with the name and address of an inmate in Florida posses a threat to the security of the facility.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Anthony J. Annucci