December 22, 1997
Ms. Barbara R. Joshi
3 Mohawk Avenue
Geneseo, NY 14454
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 Ms. Joshi:
I have received your letter of November 19. You have asked whether it
is "acceptable for the Livingston County Industrial Development Agency to first
release documents for public viewing under FOIL, then refuse to provide xerox
duplicate copies of some of these same documents."
In this regard, as a general matter, when records are available for
inspection under the Freedom of Information Law, I believe that they are available
for copying and that an agency must provide copies upon payment of the requisite
fee [see Freedom of Information Law, §89(3)]. Therefore, assuming that the
disclosure was not inadvertent and was made "intelligently and voluntarily" [see
McGraw-Edison v. Williams, 509 NYS 2d 285, 287 (1986)], it would appear that
the Agency would have waived it right to prohibit a person who inspected a record
from copying a record that was previously disclosed for the purpose of inspection.
In the case cited in the preceding paragraph, among the records inspected
was a document that the agency believed was exempted from disclosure and
which should have been withheld. It was held that an inadvertent disclosure of an
exempt records did not create a right to copy the record (McGraw-Edison Co. v.
Williams, supra). If indeed records may justifiably be withheld, but they were
inadvertently made available for inspection, it would appear that the Agency could
properly deny a request that the records be copied.
I hope that I have been of assistance.
Robert J. Freeman
cc: Patrick Rountree