March 15, 1996



Mr. Anthony G. Gill
Otisville Correctional Facility
P.O. Box 8
Otisville, NY 10963

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. Gill:

I have received your recent letter, which reached this office on February 29. You have requested an advisory opinion concerning the Freedom of Information Law.

You indicated that you recently directed a request to the Ministerial Services Division of the Department of Correctional Services in which you sought "a copy of a video tape of the Jehovah Witness Assembly [during] which [you were] baptised."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains 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."

Based on the foregoing, a videotape maintained by an agency would constitute a "record" subject to rights of access conferred by the Freedom of Information Law.

Second, 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.

In my view, a record reflective of a demonstration of personal religious beliefs or activities could be withheld on the ground that disclosure could constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §87(2)(b)]. However, since you were present at the event, I believe that those aspects of the videotape that depict activities that you witnessed must be disclosed to you. I note that the Department could charge a fee for the duplication of the tape based on the actual cost of reproduction [see Freedom of Information Law, §87(1)(b)(iii)].

Lastly, I point out that the regulations promulgated by the Department of Correctional Services indicate that a request for records kept at a correctional facility should be directed to the facility superintendent or his designee; requests for records kept at the Department's Albany offices should be sent to the Deputy Commissioner for Administration.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Division of Ministerial Services