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September 6, 2001

 

FOIL-AO-12934

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 August 13 in which you sought guidance regarding the ability
of the Crime Victims Board to gain access to records maintained by units of local government. In
this regard, I offer the following comments.

First, as you are aware, §623 of the Executive Law describes the powers and duties of the
Board, and subdivision (4) specifies that the Board is authorized:

"To request from the division of state police, from county or
municipal police departments and agencies and from any other state
or municipal department or agency, or public authority, and the same
are hereby authorized to provide, such assistance and date as well
enable the board to carry out its functions and duties."

Based upon the foregoing, it is clear that the State Legislature intended that the Board seek and that
other agencies comply with its requests to provide assistance "and data", i.e., records, that enable the
Board to carry out its duties.

Second, from my perspective, when the Board seeks records from another entity of
government, it would not be doing so under the Freedom of Information Law. That statute, as you
are aware, deals with requests by and rights of access conferred upon members of the public. When
records are sought under the Freedom of Information Law, it has been held that an applicant does
so as a member of the public and that the status or interest of the applicant is irrelevant to rights of
access [see M. Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY2d 75 (1984) and
Burke v. Yudelson, 368 NYS2d 779, aff'd 51 AD2d 673, 378 NYS2d 165 (1976)]. In consideration
of §623(4) of the Executive Law, I do not believe that the Board would be seeking records from
entities of state or local government as a member of the public under the Freedom of Information
Law. Consequently, the standards for determining the extent to which records should or may be
disclosed by those entities in my view should not be based upon the grounds for denial appearing
in §87(2) of the Freedom of Information Law.

Third, as a general matter, the Freedom of Information Law is permissive. Stated differently,
even though an agency, such as a unit of local government may withhold records in accordance with
the grounds for denial listed in §87(2), it is not required to do so [see Capital Newspapers v. Burns,
109 AD2d 92, aff'd 67 NY2d 562 (1986)]. Therefore, even though records requested under the
Freedom of Information Law might justifiably be withheld from a member of the public, the same
considerations need not apply when a request is made by the Board in carrying out its duties under
the Executive Law.

The only circumstance in my view in which another agency could not disclose would involve
those instances in which a statute other than the Freedom of Information Law prohibits disclosure.
Pertinent is §87(2(a), which involves records that are "specifically exempted from disclosure by state
or federal statute", and the correspondence attached to your letter alludes to situations in which
records cannot be disclosed. Specifically, §784 of the Family Court Act forbids the disclosure of
police records concerning the arrest and disposition of juveniles; §720.35 of the Criminal Procedure
Law prohibits the disclosure of records relating to a case involving a youth who has been adjudicated
a youthful offender; §50-b of the Civil Rights Law prohibits disclosure of portions of records
identifiable to a victim of sex offense; and §160.50 of the Criminal Procedure Law deals with the
sealing of records when charges are dismissed in favor of an accused. In each of those situations,
a statute would prohibit a unit of government from disclosing particular records.

Nevertheless, to reiterate, absent a statutory prohibition regarding disclosure, a unit of local
government is permitted to disclose records to the Board, even though those records may be withheld
from a member of the public under the Freedom of Information Law.

I hope that I have been of assistance. If you would like to discuss the matter, please feel free
to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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