NY.gov Portal State Agency Listing

 

September 4, 1997

 

 

 

Mr. Gregory Sheehan
RR1 Box 186A-4
Jefferson, NY 12093

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. Sheehan:

I have received your letter of July 24, as well as the form attached to it. According to your
letter, a candidate running for the Board of Education in your school district was required to
complete a request form and sign the following statement:

"I request the right to examine or copy school records described
above and hereby state that I will not use them for profit making or
business purposes nor will I use them for solicitation or any other
activities that constitute invasion of personal privacy."

It appears that the statement must be signed by any applicant for records, and not only a candidate
for the Board. In this regard, I offer the following comments.

First, I do not believe that an agency can require that a request be made on a prescribed form.
The Freedom of Information Law, §89(3), as well as the regulations promulgated by the Committee
(§1401.5), require that an agency respond to a request that reasonably describes the record sought
within five business days of the receipt of a request. Further, the regulations indicate that "an agency
may require that a request be made in writing or may make records available upon oral request"
[§1401.5(a)]. As such, neither the Law nor the regulations refer to, require or authorize the use of
standard forms. Accordingly, it has consistently been advised that any written request that reasonably
describes the records sought should suffice.

It has also been advised that a failure to complete a form prescribed by an agency cannot serve
to delay a response or deny a request for records. A delay due to a failure to use a prescribed form
might result in an inconsistency with the time limitations imposed by the Freedom of Information
Law. For example, assume that an individual requests a record in writing from an agency and that
the agency responds by directing that a standard form must be submitted. By the time the individual
submits the form, and the agency processes and responds to the request, it is probable that more than
five business days would have elapsed, particularly if a form is sent by mail and returned to the agency
by mail. Therefore, to the extent that an agency's response granting, denying or acknowledging the
receipt of a request is given more than five business days following the initial receipt of the written
request, the agency, in my opinion, would have failed to comply with the provisions of the Freedom
of Information Law.

While the Law does not preclude an agency from developing a standard form, as suggested
earlier, I do not believe that a failure to use such a form can be used to delay a response to a written
request for records reasonably described beyond the statutory period. However, a standard form
may, in my opinion, be utilized so long as it does not prolong the time limitations discussed above.
For instance, a standard form could be completed by a requester while his or her written request is
timely processed by the agency. In addition, an individual who appears at a government office and
makes an oral request for records could be asked to complete the standard form as his or her written
request.

In sum, it is my opinion that the use of standard forms is inappropriate to the extent that it
unnecessarily serves to delay a response to or deny a request for records.

Second, as a general matter, when records are accessible under the Freedom of Information
Law, it has been held that they should be made equally available to any person, regardless of one's
status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51
AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court,
has held that:

"FOIL does not require that the party requesting records make any
showing of need, good faith or legitimate purpose; while its purpose
may be to shed light on government decision-making, its ambit is not
confined to records actually used in the decision-making process.
(Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d
575, 581.) Full disclosure by public agencies is, under FOIL, a public
right and in the public interest, irrespective of the status or need of the
person making the request" [Farbman v. New York City Health and
Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested
records from that agency under the Freedom of Information Law. In brief, it was found that one's
status as a litigant had no effect upon that person's right as a member of the public when using the
Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there
is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the
use of the records, including the potential for commercial use or the status of the applicant, is in my
opinion irrelevant.

The only exception to the principles described above involves the protection of personal
privacy. By way of background, §87(2)(b) of the Freedom of Information Law permits an agency
to withhold records to the extent that disclosure would constitute "an unwarranted invasion of
personal privacy." Further, §89(2)(b) of the Law provides a series of examples of unwarranted
invasions of personal privacy, one of which pertains to:

"sale or release of lists of names and addresses if such lists would be
used for commercial or fund-raising purposes" [§89(2)(b)(iii)].

The provision quoted above represents what might be viewed as an internal conflict in the law. As
indicated earlier, the status of an applicant or the purposes for which a request is made are irrelevant
to rights of access, and an agency cannot inquire as to the intended use of records. However, due
to the language of §89(2)(b)(iii), rights of access to a list of names and addresses, or equivalent
records, may be contingent upon the purpose for which a request is made [see Scott, Sardano &
Pomeranz v. Records Access Officer of Syracuse, 65 NY 2d 294, 491 NYS 2d 289 (1985);
Goodstein v. Shaw, 463 NYS 2d 162 (1983)].

In a case involving a list of names and addresses in which the agency inquired as to the
purpose of which the list was requested, it was found that an agency could make such an inquiry.
Specifically, in Golbert v. Suffolk County Department of Consumer Affairs (Supreme Court, Suffolk
County, September 5, 1980), the Court cited and apparently relied upon an opinion rendered by this
office in which it was advised that an agency may appropriately require that an applicant for a list of
names and addresses provide an indication of the purpose for which a list is sought. In that decision,
it was stated that:

"The Court agrees with petitioner's attorney that nowhere in the
record does it appear that petitioner intends to use the information
sought for commercial or fund-raising purposes. However, the reason
for that deficiency in the record is that all efforts by respondents to
receive petitioner's assurance that the information sought would not
be so used apparently were unsuccessful. Without that assurance the
respondents could reasonably infer that petitioner did want to use the
information for commercial or fund-raising purposes."

As such, there is precedent indicating that an agency may inquire with respect to the purpose of a
request when the request involves a list of names and addresses. That situation, however, represents
the only case under the Freedom of Information Law in which an agency may inquire as to the
purpose for which a request is made, or in which the intended use of the record has a bearing upon
rights of access.

In the context of the request as it appears on the form, since it does not involve a list of names
and addresses, I do not believe that the purpose for which the request is made is relevant. Similarly,
I do not believe that the District could condition disclosure of the record sought upon signing the
statement.

In an effort to enhance compliance with and understanding of the Freedom of Information
Law, a copy of this opinion will be sent to the Jefferson School District.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Superintendent
Board of Education