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January 21, 1998

Mr. Philip G. Beckley
Finger Lakes Times
218 Genesee Street
Geneva, NY 14456

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 unless otherwise indicated.

Dear Mr. Beckley:

As you are aware, I have received your letter of December 12 in which you referred to
a denial of access to records sought by your reporter, Louise Hoffman, relating to the
death of a child who had been in foster care.

Based on my conversations with Ms. Hoffman and a review of the correspondence
pertaining to the request, it appears that the records sought could justifiably be denied at
this time. It is possible, however, that some aspects of the records may become available
at some point in the future. While I believe there is a basis for the denial, it differs from
the reasons offered by the Seneca County Attorney, which, in my view, are inconsistent
with law.

The initial ground for denial offered by the County Attorney included reference to
Westchester Rockland Newspapers v. Mosczydlowski [58 AD2d 232 (1977)], and he
wrote that it was held in that decision that "when the records of government are
necessarily part of a litigated matter, they are not subject to the Freedom of Information
Law." I do not agree that the decision stands for that principle. Moreover, the State's
highest court, the Court of Appeals, reached a different conclusion in an ensuing case.

As stated by the Court of Appeals in a decision involving a request made under the
Freedom of Information Law by a person involved in litigation against an agency: "Access
to records of a government agency under the Freedom of Information Law (FOIL) (Public
Officers Law, Article 6) is not affected by the fact that there is pending or potential
litigation between the person making the request and the agency" [Farbman v. NYC
Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier
decision, the Court of Appeals determined that "the standing of one who seeks access to
records under the Freedom of Information Law is as a member of the public, and is neither
enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of
John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the
distinction between the use of the Freedom of Information Law as opposed to the use of
discovery in Article 31 of the Civil Practice Law and Rules (CPLR). Specifically, it was
found 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 governmental 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.

"CPLR article 31 proceeds under a different premise, and serves quite
different concerns. While speaking also of 'full disclosure' article 31
is plainly more restrictive than FOIL. Access to records under CPLR
depends on status and need. With goals of promoting both the
ascertainment of truth at trial and the prompt disposition of actions
(Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is
at the outset limited to that which is 'material and necessary in the
prosecution or defense of an action'" [see Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would not, in my opinion, affect
either the rights of the public or a litigant under the Freedom of Information Law.

The County Attorney also wrote that "Under Section 166 of the Family Court Act, all
records of any proceedings in the Family Court are not subject to disclosure except with a
court order." As I interpret 166, it does not provide an absolute bar to disclosure, nor
would a court order necessarily be required to obtain Family Court records. That statute
states in relevant part that: "The records of any proceeding in the family court shall not be
open to indiscriminate public inspection. However, the court in its discretion in any case
may permit the inspection of any papers or records." Based on the foregoing, it is unlikely
that a member of the public or news media could review family court records on the basis
of mere curiosity; however, if a matter before the court involves an issue of public
concern, a request for records pertaining to the matter would not, in my opinion, involve
an effort to engage in "indiscriminate public inspection." In such a circumstance, a court
could, through its exercise of discretion, permit disclosure without any formal order.

Notwithstanding my disagreement with the rationale for the denial, other provisions of
law are pertinent that would preclude you from obtaining the records sought under the
Freedom of Information Law. That statute is based upon a presumption of access. Stated
differently, all records of an agency are available, except to the extent that records or
portions thereof fall within one or more grounds for denial appearing in 87(2)(a) through
(i) of the Law.

Relevant to the matter is the initial ground for denial, 87(2)(a), which pertains to
records that "are specifically exempted from disclosure by state or federal statute." One
such statute is 372 of the Social Services Law, which requires that various records be
kept by "every court, and every public board, commission, institution, or officer having
powers or charged with duties in relation to abandoned, delinquent, destitute, neglected or
dependent children who shall receive, accept or commit any child..." Subdivision (4) of
372 states in relevant part that such records:

"shall be deemed confidential and shall be safeguarded from coming
to the knowledge of and from inspection or examination or by any
person other than one authorized, by the department, by a judge of the
court of claims when such records are required for the trial of a claim
or other proceeding in such court or by a justice of the supreme court,
or by a judge of the family court when such records are required for
the trial of a proceeding in such court, after a notice to all interested
persons and a hearing, to receive such knowledge or to make such
inspection or examination. No person shall divulge the information
thus obtained without authorization so to do by the department, or by
such judge or justice."

Based on the foregoing, I do not believe that records maintained by entities having
duties relating foster care can be disclosed, unless authorization to disclose is conferred by
a court, by the Department of Social Services or, where appropriate, by the Division for
Youth.

Similarly, 422 of the Social Services Law is a statute which pertains specifically to the
statewide central register of child abuse and maltreatment and all reports and records
included in the register. Subdivision (4) (A) of 422 states that reports of child abuse as
well as information concerning those reports are confidential, and may be disclosed only
under specified circumstances listed in that statute.

There is a potential for disclosure at some point in the future pursuant to "Elisa's Law."
As I understand the series of provisions comprising "Elisa's Law", a local agency, such as
a county department of social services, would be authorized to release information, but
likely not an entire case record, if one or more among certain conditions are present.
Those conditions involve situations in which: (1) the subject of an abuse/neglect report has
been formally charged with committing a crime; or (2) a government official acting in the
course of his or her official duties disclosed information concerning an abuse/neglect
report; or (3) disclosure of a report to the public was made by the subject of the report; or
(4) the allegedly abused/neglected child named in the report died. If none of those
conditions is present, a local department of social services cannot disclose.

Based on my conversation with Ms. Hoffman, the one condition that might, under the
circumstances, authorize disclosure has not yet occurred. As I understand her comments,
the successor to the State Department of Social Services has not yet issued a report
pursuant to §20(5) of the Social Services Law, nor has there been any finding that the
child's death was the result of abuse or neglect. If such a finding is made and disclosed, at
that juncture, a second request to the County would in my view be appropriate.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Arthur I. Seld, County Attorney
Louise Hoffman