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February 23, 2000

FOIL-AO-11967

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 January 7 in which you sought assistance concerning a
request for photographs taken at a facility that had been operated by the Division for Youth,
whose functions are now carried out by the Office of Children and Family Services. The
records were apparently withheld on the basis of §501-c of the Executive Law.

In this regard, the statute that generally deals with public access to government
records, the Freedom of Information Law, 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 first 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 the provision to which you referred, §501-c of the Executive Law, which states that
files pertaining to youths maintained by the Division for Youth (or its successor) are
confidential and may be disclosed only in specified circumstances. That provision states in
relevant part that:

"Records or files of youths kept by the division for youth shall
be deemed confidential and shall be safeguarded from coming
to the knowledge of and from inspection or examination by any
person other than one authorized to receive such knowledge or
to make such inspection or examination: (i) by the division
pursuant to its regulations; (ii) or 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 (iii) by a federal court judge
or magistrate, a justice of the supreme court, a judge of the
county court or family court, or a grand jury. No person shall
divulge the information thus obtained without authorization to
do so by the division, or by such justice, judge or grand jury."

Based on the foregoing, assuming that §501-c is applicable, it is likely that the
records in question would be disclosed only pursuant to a court order.

I hope that the foregoing serves to enhance your understanding of the matter and that
I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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