March 8, 2004
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.
As you are aware, I have received your letter of February 11. You wrote that the Chemung County Clerk’s Office "refuses to allow anyone to make photocopies of naturalization records, on the grounds that it is illegal to do so." Nevertheless, you and others have acquired naturalization records from other similar offices and in addition, you indicated that the following notice appears in the front of the naturalization record books:
"Clerks of court are prohibited by law from making and issuing certifications of a naturalization record or any part thereof, except upon order of the Court...
"The prohibition against the issuance of certifications by clerks of court does not extend to the furnishing of uncertified information. Clerks of court may furnish such information orally, in writing, by printing, or by photocopy or other reproductive process, in accordance with the rules of court, without consent of or approval by the Immigration and Naturalization Service" (GPO-951-675, Form M-154 (Rev. 12-5-72)N).
In this regard, from my perspective, there is a distinction between the issuance of a certification and a disclosure of a record pursuant to the Freedom of Information Law. 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.
I know of no statute that would prohibit the inspection or copying of the records at issue. Further, I have attempted to conduct research on the matter and the only New York statute that I was able to locate that pertains in any way with clerks and naturalization is §527 of the County Law, which deals with the appointment of naturalization clerks. That provision is silent with respect to disclosure or the ability to withhold records.
In sum, I do not believe that there would be any prohibition regarding disclosure of the records at issue; on the contrary, I believe that they are subject to inspection, copying and reproduction in accordance with the Freedom of Information Law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Catherine K. Hughes