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May 15, 1998


Hon. Ronald Stafford
Member of the Senate
Room 502
The Capitol
Albany, NY 12247

Dear Senator Stafford:

I have received a copy of a letter of May 11 addressed to you by Joseph A. Colistra,
Superintendent of Schools of the Peru Central School District. In brief, he referred to a
request under the Freedom of Information Law for a copy of a yearbook photograph and
expressed concern that there was no way of knowing the intent of the applicant for the

Mr. Colistra contacted me regarding the request, and although we discussed the issue,
I do not believe that his rendition of my remarks was entirely accurate.

By way of background, as you are aware, the Freedom of Information Law is based
upon a presumption of access. Stated differently, all records of an agency, including a
school district, must be disclosed, unless there is a ground for denial of access appearing in
º87(2) of the Law. Moreover, soon after the Freedom of Information Law was enacted, it
was determined that if a record is accessible under the Law it must be made equally
available to any person, without regard to one's status or interest [see Burke v. Yudelson,
368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. That principle was
confirmed by the Court of Appeals, which found that the interest of an applicant and the
intended use of records are irrelevant to rights of access [M. Farbman & Sons. v. New
York City Health & Hosps. Corp., 62 NY 2d 75 (1984)]. In short, the nature of the
record determines whether it is accessible to the public; the identity of the applicant and
the intended use of a record are not considerations that can validly be considered in
determining rights of access.

I have dealt with the person who made the request in the past, and I believe that he has
made similar requests of other districts. I, too, have been concerned regarding the use of
the records. Nevertheless, I believe that I am required to offer what I believe to be the
correct answer under the law, irrespective of my personal views. Certainly I did not
suggest to Mr. Colistra that I take no responsibility for opinions rendered by this office.
Every opinion is prepared seriously; every opinion is prepared as if it will be reviewed by a
court. Our only goal is to offer a correct response based upon applicable law and judicial

In terms of the substance of the matter, yearbooks are widely distributed and can be
purchased by everyone. While we cannot know of the interests of every person who
might look at or purchase a yearbook, very simply, there is nothing secret or private about
its contents. Further, yearbook photographs are frequently used by others in a variety of
contexts. As an example, I enclose a copy of a section of yesterday's edition of the
Albany Times-Union pertaining to Scholar Athlete Awards. The special supplement
includes not only the photographs of scholar athletes and the schools that they attend; it
also includes their grade point average, class rank, SAT scores, academic honors and
athletic achievements. The publication of the kind of record requested from the Peru
Central School District is not uncommon. To suggest that information derived from a
yearbook that can be purchased by anyone could justifiably be withheld would, in my
view, be inconsistent with law.

I hope that the foregoing serves to enhance your understanding of the matter. If you
would like to discuss the issue, please feel free to contact me.



Robert J. Freeman
Executive Director



cc: Joseph A. Colistra, Superintendent