Jordan v. Hammock

• Decision Date: 21 January 1982
• Citation: 86 A.D.2d 725,447 N.Y.S.2d 44
• Parties: In the Matter of Joseph JORDAN, Respondent, v. Edward R. HAMMOCK, as Chairman of the New York State Division of Parole, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 44

447 N.Y.S.2d 44

86 A.D.2d 725

In the Matter of Joseph JORDAN, Respondent, v. Edward R. HAMMOCK, as Chairman of the New York State Division of Parole, et al., Appellants.

Supreme Court, Appellate Division Third Department.

Jan. 21, 1982.

Robert Abrams, Atty. Gen. (Frederick R. Walsh, Asst. Atty. Gen., of counsel), for appellants.

Greg D. Lubow, Greene County Public Defender, Catskill, for respondent.

Before MAHONEY, P. J., and KANE, CASEY, WEISS and SWEENEY, JJ.

MEMORANDUM DECISION.

Appeal from so much of a judgment, 109 Misc.2d 1052, 441 N.Y.S.2d 363, of the Supreme Court at Special Term, entered August 13, 1981 in Greene County, which, in a proceeding pursuant to CPLR article 78, directed respondents to submit certain letters for an in camera inspection along with evidence, ex parte, in support of respondents' claim of exemption from disclosure.

In December 1980, the Parole Board denied petitioner parole stating in its determination that there were many persons opposed to his release. Petitioner thereafter sought inspection of any correspondence or contacts that the Parole Board had with persons opposed to his release and also inspection of his psychiatric records. This request was denied and the instant proceeding was instituted to compel respondents to make available petitioner's parole file for inspection. Special Term denied disclosure of petitioner's psychiatric records but directed respondents to submit the letters sought by petitioner for an in camera inspection along with evidence, ex parte, in support of their claim of exemption from disclosure. Respondents appeal from so much of the judgment as directed the submission of the letters for an in camera inspection along with evidence, ex parte.

All agency records are open to the public unless they fall within one of the exemptions set forth in subdivision 2 of section 87 of the Public Officers Law. We agree with respondents that the letters sought are exempted by State statute and therefore access was properly denied under section 87 (subd. 2, par. ) of the Public Officers Law. Specifically, section 259-k of the Executive Law authorizes the Parole Board to make rules for the purpose of maintaining the confidentiality of records. Pursuant to this authority, 9 NYCRR 8000.5(c)(2)(i)(a) provides that access to case records maintained by the Division of Parole is not available to the extent that the records contain:

(2) materials which would reveal sources of information obtained upon a promise of confidentiality;

(3) any information which if disclosed might result in harm, physical or otherwise, to any person.

It is clear that the subject letters, which were received from private citizens, are protected and remain confidential pursuant to 9 NYCRR 8000.5(c)(2)(i)(a)(2) and (3). Such is the intent of 9 NYCRR 8000.5(c)(2) which states that the limitations on access are essential in order " * * * to permit private citizens to express freely their opinions for or against an individual's parole * * * ".

Judgment modified, on the law, by striking the first decretal paragraph thereof and by substituting therefor a provision dismissing the petition in its entirety, and, as so modified, affirmed, without costs.

KANE, CASEY and WEISS,...