Stephen L. Oppenheim, Esq.

Attorney General of New York — Opinion
Dated: December 24, 1980

PUBLIC OFFICERS LAW, §§ 86, 87, 89; 28 C.F.R. § 20.30, 20.33,20.38.

Under the Freedom of Information Law all records are available to the public except that a municipality may deny access to records within certain categories. In the case of criminal history records obtained from the New York State Department of Criminal Justice Services, a municipality must determine whether access is restricted by a Use and Dissemination Agreement between the municipality and the Department.

Stephen L. Oppenheim, Esq. Village Attorney Village of Monticello

You inquire whether the Village of Monticello may release to its insurance carrier criminal history records obtained by the village police department from the Department of Criminal Justice Services. The information was requested by the carrier in connection with its defense of an assault and battery action against the village allegedly arising out of an arrest by the police department.

The Freedom of Information Law makes all records available to the public and provides that an agency (which includes a municipal department) may
deny access to records within certain listed categories (Public Officers Law, §§ 86, 87, 89).

The Village of Monticello and the New York State Identification and Intelligence System (“NYSIIS”, a predecessor of Department of Criminal Justices Services) entered into an agreement entitled “New York State Identification and Intelligence System Use and Dissemination Agreement” dated April 15, 1972. This agreement governs use by the village of criminal offender record information supplied by the Department. Section IV of the agreement provides for the village to comply with New York State law, the NYSIIS Code of Ethics, NYSIIS administrative regulations and to the extent that data is received from the FBI National Crime Information Center (“NCIC”) computerized criminal history system, the rules and regulations of the NCIC.

Information from the NCIC is available to Federal, State and local criminal justice agencies for criminal justice purposes (28 Code of Federal Regulations, §§ 20.30, 20.33). The services of the NCIC may be cancelled if the recipient of information disseminates it to other than related agencies (id., §§ 20.33 [b], 20.38). If the criminal history records possessed by the village include NCIC information, the foregoing Federal rules would apply to it under the terms of the Use and Dissemination Agreement. We have not found State law (other than the Freedom of Information Law) or rules governing access to criminal history records. We suggest that you review the criminal history records to determine whether access to them is affected by the Use and Dissemination Agreement or the NYSIIS Code of Ethics.

We conclude that under the Freedom of Information Law, all records are available to the public except that a municipality may deny access to records within certain categories. The Village of Monticello should determine whether access to criminal history records obtained from the New York State Department of Criminal Justice Services is so restricted by the Use and Dissemination Agreement between the village and the Department that some or all of the records cannot be revealed to your insurer.