August 15, 1996
Mr. Alan Newton
Ossining, NY 10562
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. Newton:
I have received your letter of August 9 and the correspondence attached to it.
According to the materials, your request for records of the New York City Police Department was denied because they "relate to a sex offense and are confidential under Section 50(b) of the Civil Rights Law." You have contended that the denial was improper, for §50-b(2)(a) provides that the confidentiality restrictions imposed by subdivision (1) of §50-b do not apply to "[a]ny person charged with the commission of a sex offense...against the same victim." You have asked whether there is a means by which you "may compel the Police Department to follow the law and grant [your] freedom of information request."
From my perspective, the Freedom of Information Law does not apply, and §50-b of the Civil Rights Law would not confer rights of access to the records sought, even though you may be the person charged. As I understand §50-b, although the Police Department may not be prohibited from disclosing records falling within the coverage of that statute to you, it is not obliged to do so, for that statute does not confer a right of access.
Subdivision (1) of §50-b states that:
"The identity of any victim of a sex offense, as defined in article one hundred thirty or §255.25 of the penal law, shall be confidential. No report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim except as provided in subdivision two of this section."
The initial ground for denial in the Freedom of Information Law, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." Section 50-b of the Civil Rights Law exempts records identifiable to a victim of a sex offense from disclosure. Consequently, the Freedom of Information Law in my view provides no rights of access to those records. Any authority to disclose or obtain the records in question would be based on the direction provided by the ensuing provisions of §50-b.
In this regard, the introductory language of subdivision (2) provides that "[t]he provisions of subdivision one of this section shall not be construed to prohibit disclosure of information to: a. Any person charged with the commission of a sex offense..." While the Department is not forbidden from disclosing records subject to §50-b to a person charged, I do not believe that §50-b creates a right of access on behalf of such person. Further, subdivision (3) states in relevant part that "The court having jurisdiction over the alleged sex offense may order any restrictions upon disclosure authorized in subdivision two of this section..."
In sum, it is my view that issues involving the disclosure of the records in question would be governed by §50-b of the Civil Rights Law, rather than the Freedom of Information Law. That being so, it is suggested that you discuss the matter with your attorney.
As you requested, I am returning the original response to your appeal by the New York City Police Department.
I hope that I have been of assistance.
Robert J. Freeman
cc: Karen A. Pakstis