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The birth dates of detainees in New York City’s jails — a critical identifying factor — will not be provided to a Web business that compiles criminal records for background checks of potential employees, tenants or kids’ coaches, a Manhattan state judge has ruled. Acting Justice Kibbie F. Payne dismissed the Article 78 petition filed by Investment Technologies, which owns and operates rapsheets.com. The judge agreed with the Department of Corrections’ denial of a Freedom of Information Law (FOIL) request for the dates of birth for all detainees because the posting of such information on the commercial Web site could subject the detainees to possible identity theft and personal and economic hardship. Detainees include people who have been arrested but have not yet been convicted of a crime. Although Investigation Technologies had obtained an advisory opinion from the executive director of the New York State Commission on Open Government favoring disclosure, Justice Payne found that the Department of Corrections (DOC) had demonstrated the “particularized and specific justification” for withholding the birth dates. The commission’s opinion noted that the New York State Department of Correctional Services included inmates’ dates of birth among the information it posts on its own site. But Payne drew a distinction between convicted inmates in state facilities and “transient detainees of New York City jails.” “[T]he average length of stay of a DOC detainee is approximately 45 days and a majority of those in DOC’s custody are pretrial detainees to whom the presumption of innocence attach,” he wrote in Investigation Technologies LLC v. Horn, 104120/04, filed in Supreme Court, New York County, IA Part 4. “Neither, does it seem fair to have persons, against whom the criminal accusation may ultimately prove unfounded, to suffer the stigma of jail detention as a result of having their identities disclosed to the general public,” the judge said. According to its Web site, rapsheets.com is “America’s largest source of criminal records on the Internet.” It has contracted with Little League Baseball Inc. to allow local leagues to search criminal records from 39 states and the District of Columbia and sex offender registries from 35 states and the district. The searches, which normally cost $19.95, are only $1.95 for Little League officials who are required to do background checks on all their coaches and other volunteers. Justice Payne noted that the DOC had agreed to provide most of the information sought by Information Technologies and was required by �9-121 of the New York City Administrative Code to make public each detainee’s name, age, sex, color, ethnic group, religious faith and a statement of the nature and length of the detention. Most of the city’s detainees, averaging from 14,000 to 19,000 a day, are housed in 10 facilities on Rikers Island in the East River of New York state. But the requirement that a person’s age be disclosed does not include the individual’s date of birth, the judge said. A review of New York cases to determine what constitutes an unwarranted invasion of personal privacy shows that the personal privacy right “is only outweighed by a greater concern for orderly law enforcement, security by correctional facilities or the need for legitimate public oversight of governmental operations, none of which are implicated by the present FOIL request,” Payne concluded. Investigation Technologies was represented by David A. Schulz of Levine Sullivan Koch & Schulz. Assistant Corporation Counsel John P. Hewson appeared for Department of Correction Commissioner Martin F. Horn.

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