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FOIL-AO-15948

May 4, 2006

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 facts presented in your correspondence.

Dear

As you are aware, I have received your letter in which you wrote that you are employed by a state agency that provides services to persons with disabilities, and that when a client "has police contact, is arrested, or is the victim of a crime, the Commissioner’s office has to be notified." Part of your duties involves obtaining police reports and other documents maintained by law enforcement agencies. However, you indicated that some police departments "have become unwilling to cooperate with [y]our need to follow up and obtain information quickly." You have asked for suggestions to facilitate the process.

First, when, in your capacity as an employee of a government agency, you seek records from another entity of government, you would not be doing so under the Freedom of Information Law. That statute 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 the situation that you described, you would not be requesting records as a member of the public, but rather as a government employee in the performance of your official duties.

In that kind of circumstance, it has been advised that, in the spirit of cooperation, agencies should share records with one another, so long as there is no statute that prohibits disclosure. It has also been suggested that a request by an agency employee should be accompanied by written documentation indicating that the request is being made in the performance of the agency’s official duties. Often in that kind of situation, the agency in possession of the records is willing to share records with another agency, even if the records or portions thereof could properly be withheld from a member of the public seeking the same records under the Freedom of information Law.

Lastly, it is recommended that your commissioner or other person in a position of authority write to those agencies that resist disclosure to explain your agency’s responsibilities, its legal duty to obtain the records, and to encourage cooperation.

I hope that I have been of assistance.

RJF:tt