March 24, 1997




Mr. Reginald Hough
Groveland Corr. Facility
PO Box 104
Sonyea, NY 14556

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. Hough:

I have received your letter of February 25, as well as the materials attached to it.

According to the correspondence, prior to your parole hearing, you requested your case record in accordance with the regulations promulgated by the Division of Parole, which state in relevant part that you may obtain "those portions of the case record which will be considered by the board or authorized hearing officer or pursuant to an administrative appeal of a final decision of the board..." [9 NYCRR §8000.5(c)(2)(i)]. In response to the request, you were given the "parole board summary" and informed that other materials were exempt from disclosure under §8000.5(c)(2)(i)(a) and (b). You appealed the denial and sought assistance in the matter.

In this regard, it is unclear whether you have a right to records other than the parole summary. As suggested above, the regulations appear to recognize due process, for you should have the ability to gain access to records "to be considered" at a hearing. Further, the exceptions described in the regulations are, in my view, consistent with the grounds for withholding records appearing in §87(2) of the Freedom of Information Law. For instance, diagnostic opinions could likely be withheld under §87(2)(g) of the Freedom of Information Law; records identifying sources of information obtained upon a promise of confidentiality could likely be withheld under §87(2)(b) or (e)(iii); information which if disclosed would endanger the life or safety of any person could be withheld pursuant to §87(2)(f); and pre-sentence reports and memoranda are exempt from disclosure pursuant to §390.50 of the Criminal Procedure Law and, therefore, §87(2)(a) of the Freedom of Information Law.

In short, if the Division has disclosed the records to be considered at the hearing that are not exempt form disclosure, I believe that the response was consistent with law. Otherwise, however, in response to your appeal, the Division, in my opinion, would be required to disclose all other records to considered at the hearing that are not deniable under the regulations or the Freedom of Information Law.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: David Molik
Parole Officer Williams