January 30, 1997





Mr. Wallace S. Nolen
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021-0618

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. Nolen:

I have received your letter of December 27, which reached this office on January 6. You have requested an opinion concerning rights of access to a variety of records relating to notaries public that are maintained by the Department of Correctional Services "and/or notaries employed by such agencies."

You referred initially to a log that includes inmates' names, identification numbers, signatures, and their cell locations. In my view, the issue in terms of access to the log involves the extent to which disclosure would result in an unwarranted invasion of personal privacy [see Freedom of Information Law, §89(2)(b)]. I believe that the names and cell locations would be accessible, for it has been held that those kinds of items must be disclosed [see Bensing v. LeFevre, 506 NYS 2d 811 (1986)]. However, there are two Appellate Division decisions indicating that an inmate's identification number would, if disclosed, constitute an unwarranted invasion of personal privacy [see Dobranski v. Houper. 145 AD 2d 736, 738 (1989); DiRose v. Department of Correctional Services, 640 NYS 2d 353, 354, ___ AD 2d ___ (1996)].

You referred next to a "call out sheet for notary services for each date that notaries supposedly make call outs to render notary services." You added that there are lists for inmates in the general population, "classified prisoners", and for those restricted to their cells. You also referred to requests made individually by inmates for notary services on separate sheets, notes or letters. Again, I believe that the names of inmates and the locations where they are housed would be public, but that identification numbers could be withheld. From my perspective, a request by an inmate for notary services, without more, would not represent a significant invasion of privacy and should be disclosed. However, insofar as the kinds of records to which you referred include the reason for which an inmate seeks notary services, it would appear that disclosure of that kind of notation would constitute an unwarranted invasion of personal privacy and could be withheld.

Next, you indicated that your request for complaints or grievances relating to notary services was denied in its entirety. It is your view that names and other identification information must be disclosed. Without knowledge of the nature of the kinds of records in question, I cannot offer specific guidance. However, it has been advised in a variety of circumstances that identifying details pertaining to a person who submits a complaint may be withheld based upon considerations of privacy. Similarly, it has been advised that if a complaint or allegation against a public employee or licensee, for example, has not been substantiated, the identity of the subject of the complaint may also be withheld to protect his or her privacy. Following the deletion of identifying details, the remainder of the record, i.e., the substance or nature of the complaint, should in my opinion be disclosed. If a final determination has been made indicating that a public employee or licensee has engaged in misconduct, that kind of determination must be disclosed.

You wrote that officials at the Department claim that records of a notary are personal property rather than Department records. You pointed out that the Department, not the notary, maintains custody of the records. If your statement is accurate, I would agree that the materials in question would constitute agency records. As you are aware, §86(4) of the Freedom of Information Law defines the term "record" broadly to include:

"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 upon the language quoted above, if indeed the Department maintains custody of the records at issue, I believe that they would fall within the coverage of the Freedom of Information Law.

Lastly, you asked whether I am aware of any cases or decisions pertaining to notaries. In this regard, I have no knowledge of any such determinations. I hope that I have been of assistance.



Robert J. Freeman
Executive Director