NY.gov Portal State Agency Listing

 

  September 24, 1997

 

 

Mr. Greg D. Lubow
Attorney at Law
P.O. Box 839
Tannersville, NY 12485

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. Lubow:

I have received your letter of August 27, as well as the materials attached to it. You have
sought an opinion concerning your efforts in gaining access to records pertaining to a client, who is
an inmate at the Oneida Correctional Facility, which operates within the State Department of
Correctional Services.

In brief, you submitted a request for records with a photocopy of an authorization signed by
your client. The authorization was notarized by a licensed notary public, who you believe to be an
employee at the facility in which your client is incarcerated. Notwithstanding the foregoing, the
inmate records coordinator at the facility refused to disclose the records to you without an original
signature by your client. Her refusal is apparently based on a memorandum prepared by a former
Deputy Commissioner and Counsel to the Department in 1987 requiring that all releases and
authorizations "contain an original signature (not photocopy, carbon, etc.)..."

From my perspective, the question is whether the policy and practice of the Department as
implemented are reasonable and consistent with law.

In this regard, although both the Freedom of Information Law and the Personal Privacy
Protection Law make reference to the ability of the subject of a record to authorize disclosure of the
record, neither statute refers a specific method of providing such authority. Section 89(2)(c)(ii) of
the former states that disclosure would not constitute an unwarranted invasion of personal privacy
"when the person to whom a record pertains consents in writing to disclosure." Similarly, §96(1) of
the latter refers to a state agency's authority to disclose records pertaining to a data subject, the
person to whom records pertain, via "the voluntary written consent of the data subject..." There is
no requirement imposed by either statute that consent to disclose by the subject of a record must
consist of an original record bearing an original signature.

Under the circumstances, in my opinion, it is unreasonable for the inmate records coordinator
or the Department, as a matter of policy, to require an authorization bearing an original signature.
The authorization signed by client is notarized. It is my understanding that the signature and seal of
a licensed notary public are intended to guarantee that the person who signed the document is who
he or she claims to be; that guarantee by the notary, so long as his or her commission is current,
should, in my view, be sufficient, with the signature of the individual, to authorize the disclosure of
records under the Freedom of Information Law, whether those ingredients appear on an original
document or a photocopy.

I note, too, that in the evidentiary rules found in the Civil Practice Law and Rules, a
photocopy is "as admissible in evidence as the original." Specifically, §4539, entitled "Reproductions
of original", states in relevant part that:

"If any business, institution, or member of a profession or calling, in
the regular course of business or activity has made, kept or recorded
any writing, entry, print or representation and in the regular course of
business has recorded, copied or reproduced it by any process,
including reproduction, which accurately reproduces or forms a
durable medium for reproducing the original, such reproduction, when
satisfactorily identified, is as admissible in evidence as the original,
whether the original is in existence or not..."

If a photocopy is as admissible in a judicial proceeding for evidentiary purposes, I believe that it
should be equally acceptable for the purpose of authorizing disclosure under the Freedom of
Information or Personal Privacy Protection Laws.

Since you sought advice concerning a possible challenge to the Department's stance, one
avenue, as you are aware, would involve the initiation of litigation under Article 78 of the Civil
Practice Law and Rules. However, in an effort to avoid litigation and encourage the Department to
alter its policy, a copy of this opinion will be forwarded to Counsel to the Department of Correctional
Services for his consideration.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm