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Publisher loses try for criminal data via open records law

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  1. Freedom of Information

    NMU         NEW YORK         Freedom of Information         Dec 13, 2000    

Publisher loses try for criminal data via open records law

  • The judge found the commercial availability of the same information showed a legislative intent to exempt the data from the open records law.

A Supreme Court judge in Manhattan dismissed a publishing company’s attempt under the open records law to obtain compiled criminal data because the statute does not apply to judicial records even when an agency other than a court possesses the documents.

Judge Michael Stallman ruled Nov. 29 that the criminal data, although held by a separate agency, constitute judicial records and therefore could not be acquired through the state freedom of information law because such records are not subject to the statute. Additionally, as judicial records, only the judiciary has the power to determine the availability of these documents, not the legislature.

The Daily News Publishing Co. made a freedom of information request in June to the Office of Court Administration for the electronic database known as the Criminal Records Information Management System and later in the month filed an administrative appeal. The company intended to sell the information to monthly subscribers via the Internet.

The Office of Court Administration sells the same information publicly.

However, Hyman Schaffer, counsel for Daily News Publishing, argued the practice of selling the compiled data eviscerated any privacy concerns and claims of a judicial record exception. Schaffer requested that the judge hold a fact-finding hearing to determine what comprises the CRIMS database, but the judge rebuffed the request.

Money generated from sales of the information defrays costs of processing the data, as provided in a state statute. In the judge’s analysis, he said the existence of the statutory commercial database indicated the legislature did not intend for the freedom of information law to apply to the criminal record data because a records request would subvert the money-raising measure.

“In many senses, (the case) was not a freedom of information issue. It was a question of “we’re not giving it to you, but we will give it to someone else,'” Schaffer said of the OCA denial.

The company, based in Memphis, Tenn., provides searchable databases of criminal records from numerous states on its website. Each database contains felony convictions dating back several decades and search results include a defendant’s name, date of birth, race, sex, offense, disposition of the case, the date of the disposition, and county case number. According to the website, monthly subscriptions cost $14.95 and provide unlimited use of name and address searches and searches of 20 other categories of information. A criminal records search is available at a per transaction price.

In addition to maintaining the criminal records database, the company publishes The Daily News, a weekday tabloid newspaper covering construction, real estate, the courts and business in the Memphis area.

(The Daily News Publishing Co. of Memphis, Tenn. v. Office of Court Administration; Media Counsel: Hyman Schaffer, Arkin Kaplan & Cohen, New York) SM

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