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 FOIL-AO-14952

October 18, 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 facts presented in your correspondence.

Dear

I have received your letter and apologize for the delay in response.

You referred to a new policy adopted by the Building Inspector of the Town of Southampton under which those seeking to inspect records must show their drivers’ licenses as a condition precedent to viewing Building Department records. Following my criticism of the policy, you were apparently told that neither myself nor the Committee on Open Government has "statutory authority over the Town..."

While it is true that the advice and opinions offered by this office are not binding on an agency, the Committee is designated by statute to perform that function [see Freedom of Information Law, Public Officers Law, §89(1)], and it is our hope that so doing enhances compliance with and understanding of the Freedom of Information Law.

In an effort to achieve that goal, I note initially that it was held soon after its enactment that when records are accessible under the Freedom of Information Law, 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 NY2d 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 is, in my opinion, irrelevant.

In short, I do not believe that a town official may condition disclosure on furnishing proof of identity, for one’s identity ordinarily has no bearing on rights of access.

From my perspective, the only instance in which an agency may require proof of one’s identity would involve a situation in which only the person seeking records would have rights of access to the records sought. If, for example, a record includes intimate or personal information the disclosure of which would constitute "an unwarranted invasion of personal privacy", that information may be withheld from the general public [see §89(2)(b)]. However, when it is requested by the subject of the record, that person can not invade his or her own privacy and ordinarily would enjoy rights of access, "upon presenting reasonable prof of identity" [see §89(2)(c)].

Lastly, I do not believe that the head of the Building Department has the authority, on his own initiative, to establish the policy at issue. The Town Board, as the governing body of a municipality, has overall responsibility for ensuring compliance with and implementation of the Freedom of Information Law. Further, pursuant to the regulations promulgated by the Committee, which have the force and effect of law, the Town’s designated records access officer has the duty of coordinating the Town’s response to requests for records [see 21 NYCRR §1401.2]. I believe that the Town Clerk is the records access officer.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt
cc: Hon. Marietta Seaman, Town Clerk
Michael Benincasa
Kathleen Murray