January 21, 1998


Mr. Daniel Ward
P.O. Box AG
Fallsburg, NY 12733

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. Ward:

I have received your letter of November 6, which reached this office on November 19.

You have sought an advisory opinion concerning the propriety of a denial of your request by the Division of Criminal Justice Services (DCJS) for a rap sheet pertaining to a deceased person who allegedly testified against you during a grand jury proceeding.

In this regard, 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 Capital Newspapers v. Poklemba (Supreme Court, Albany County, April 6, 1989), it was held that conviction records maintained by DCJS are confidential in view of the legislative history of the statutes that govern the practices of that agency. Specifically, the first 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", and it was found that:

"Both the language of the statute and the consistent history of limited access to the criminal records maintained by DCJS lead this court to conclude that an exception to the mandate of FOIL exists with respect to the disclosure sought by petitioner."

I hope that the foregoing serves to enhance your understanding of the matter and that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Richard Ross, Records Access Officer