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FOIL-AO-13735

November 27, 2002

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

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 in which you questioned the propriety of a requirement imposed
by the City of Syracuse that you and others "sign a release form before they would release basic
maps of the Skaneateles watershed", as well as a "document stating that we would not release the
maps or place them on the internet."

In this regard, from my perspective, a person seeking records under the Freedom of
Information Law from an agency, such as a city, cannot be compelled, as a condition precedent to
disclosure, to indicate the purpose of a request or the intended use of the records, or to promise or
agree that that the records will not be released or placed on the internet. As a general matter, when
records are accessible under the Freedom of Information Law, it has been held that they should be
made equally available to any person, regardless of one's status, interest or the intended use of the
records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)].
Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any
showing of need, good faith or legitimate purpose; while its purpose
may be to shed light on government decision-making, its ambit is not
confined to records actually used in the decision-making process.
(Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d
575, 581.) Full disclosure by public agencies is, under FOIL, a public
right and in the public interest, irrespective of the status or need of the
person making the request" [Farbman v. New York City Health and
Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested
records from that agency under the Freedom of Information Law. In brief, it was found that one's
status as a litigant had no effect upon that person's right as a member of the public when using the
Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there
is a basis for withholding records in accordance with the grounds for denial appearing in 87(2), the
use of the records, including the potential for commercial use or the status of the applicant, is in my
opinion irrelevant. In short, once records are made available under the Freedom of Information Law,
I believe that the recipient may do with the records as he or she sees fit.

I note that in a decision rendered last year, the Life Insurance Council of New York attempted
to bolster a denial of access to certain records maintained by the State Department of Insurance that
had long been available to the public because the recipient of the records placed the records on the
internet. The court rejected the argument and determined that the records remained accessible and
that there was no justifiable reason for prohibiting their placement on the internet [Belth v. New
York State Department of Insurance, 733 NYS2d 833 (2001)]. In a related vein, a decision
published within the past week rejected a claim that the placement of statements of charges and
determinations involving misconduct on the part of physicians on the internet was "violative of
lawful procedure, arbitrary and capricious, and an abuse of discretion" (Anonymous v. Bureau of
Professional Medical Conduct, Supreme Court, New York County, NYLJ, November 21, 2002).

In short, I do not believe that you can be compelled to agree not to release records accessible
under the Freedom of Information Law or to place those records on the internet as a condition
precedent to disclosure.

I hope that I have been of assistance.

 

RJF:jm

cc: Corporation Counsel, City of Syracuse