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November 1, 1999

FOIL-AO-11792

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

I have received your letter of September 19 in which you referred to a refusal by the
Rensselaer County Department of Social Services to disclose your medical history to you
pursuant to 373-a of the Social Services Law "on the basis that [you] had already received
[your] medical history as part of the Non-Identifying Information Report [you] received from
the New York State Adoption Information Registry." You have asked whether if you have
requested a record once, you are not entitled to request it a second time.

From my perspective, if the County maintains the same record as that maintained in the
Adoption Registry, you may not be entitled to seek it a second time. In Moore v. Santucci
[151 AD 2d 677 (1989)] it was found that an agency need not make available records that had
been previously disclosed to the applicant or that person's representative, unless there is an
allegation "in evidentiary form, that the copy was no longer in existence." In my view, if you
can "in evidentiary form" demonstrate that neither you nor your representative maintains
records that had previously been disclosed, the agency would be required to respond to a
request for the same records.

On the other hand, if the records maintained by the two entities are different, I believe that
the County would be obliged to its records to the extent required by 373-a and the Freedom
of Information Law [see Malowski v. D'Elia, 160 AD2d 798 (1990)]. In that event, a request
should be made to the County's "records access officer." Pursuant to the regulations
promulgated by the Committee on Open Government (21 NYCRR Part 1401), each agency is
required to designate one or more persons as records access officer, and he or she is required
to coordinate an agency's response to requests. It is suggested that you contact the office of
the County Executive to ascertain the identity of the records access officer.

Lastly, as I understand the applicable statute, adoption records can be disclosed only
pursuant to a court order. I point out that the first ground for denial of access to records in the
Freedom of Information Law, 87(2)(a), pertains to records that "are specifically exempted
from disclosure by state or federal statute." One such statute is 114 of the Domestic
Relations Law, which generally requires that adoption records be sealed and confidential. As
such, the Freedom of Information Law would not be applicable to those records. Section 114
states in part that:

"No person, including the attorney for the adoptive parents shall
disclose the surname of the child directly or indirectly to the adoptive
parents except upon order of the court. No person shall be allowed
access to such sealed records and order and any index thereof except
upon an order of a judge or surrogate of the court in which the order
was made or of a justice of the supreme court. No order for
disclosure or access and inspection shall be granted except on good
cause shown and on due notice to the adoptive parents and to such
additional persons as the court may direct."

Based on the foregoing, only a court by means of an order could unseal records relating to an
adoption.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Cathy McCarthy, Rensselaer County Dept. of Social Services