January 20, 1999
Mr. Christopher K. Philippo
539 Bloomingrove Drive, Apt. 3
Rensselaer, NY 12144-9350
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
Dear Mr. Philippo:
I have received your letter of January 1. In conjunction with your review of opinions
rendered by this office pertaining to access to adoption records and adoptees' original birth records,
you have raised a series of questions.
First, you sought my opinion concerning the holding in Malowsky v. D'Elia [160 AD2d 798
(1990)], in which the court determined that what you characterized as adoption agencies "must yield
to the strong policy considerations underlying FOIL." In this regard, I note that Malowsky dealt with
a request for records apparently maintained by a county department of social services, which clearly
is an "agency" as that term is defined in §86(3) of the Freedom of Information Law. Adoption
agencies and other entities subject to §373-a of the Social Services Law are frequently not
governmental in nature and, therefore, not subject to the Freedom of Information Law.
With respect to the Court's statement that you quoted, I see no inconsistency between the
general thrust of the Freedom of Information Law and the decision. The former is intended to
provide maximum access to government records; §373-a deals with particular records and creates
what essentially is a special right of access to medical histories to the subjects of those records, so
long as identifying details pertaining to the adoptees natural parents are "eliminated." The thrust of
§373-a is analogous to both the Freedom of Information Law and the Personal Privacy Protection
Law. Under both of those statutes, in general, an individual cannot invade his or her own privacy;
however, both statutes include provisions designed to protect the privacy of others.
In a related vein, you asked whether the Personal Privacy Protection Law "would permit an
adoptee to access his or her own birth, foster care, and adoption records." In my view, it would not.
That statute pertains only to records maintained by state agencies; it does not apply to records of
private entity, a unit of local government or a court. Further, insofar as the records at issue are
maintained by state agencies, I note that §95(6)(a) specifies that the Personal Privacy Protection Law
does not require a state agency to provide the subject of a record with "personal information to which
he or she is specifically prohibited by statute from gaining access." Each of the records to which you
referred is confidential by statute, and each of those statutes limits the circumstances under which
the records may be disclosed. As such, I do not believe that the Personal Privacy Protection Law
would serve to grant access to those records.
Lastly, you wrote that you "would like to know what guarantees the public has that the
Department of Family Assistance (AKA Social Services) is accountable to the public." While I
cannot respond in detail due to my lack of familiarity with the agency in question, I believe that all
state agencies strenuously seek to comply with law.
I hope that I have been of assistance.
Robert J. Freeman