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FOIL-AO-15513

September 28, 2005

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 have sought guidance concerning your ability to gain access to records pertaining to yourself from the Chenango County Office of Child Protective Services.

As I understand the matter, the Freedom of Information Law would not serve as a basis for obtaining the records of your interest. However, I believe that a different provision of law would authorize, but not require, certain agencies or a court to disclose the records to you.

In this regard, by way of background, 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 initial 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 §372 of the Social Services Law, which requires that various records be kept by "every court, and every public board, commission, institution, or officer having powers or charged with duties in relation to abandoned, delinquent, destitute, neglected or dependent children who shall receive, accept or commit any child..." Subdivision (4) of §372 states in relevant part that such records:

"shall be deemed confidential and shall be safeguarded from coming to the knowledge of and from inspection or examination or by any person other than one authorized, by the department, 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 by a justice of the supreme court, or by a judge of the family court when such records are required for the trial of a proceeding in such court, after a notice to all interested persons and a hearing, to receive such knowledge or to make such inspection or examination. No person shall divulge the information thus obtained without authorization so to do by the department, or by such judge or justice."

Based on the foregoing, I do not believe that records maintained by entities having duties involving child protective services can be disclosed, unless authorization to disclose is conferred by a court, by the County Department of Social Services or by the NYS Office of Children and Family Services.

It is suggested that you contact the appropriate agency or agencies in an effort to gain access to the records of your interest.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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