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FOIL-AO-16130

August 25, 2006

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 relating to our conversation involving requests by agencies made pursuant to the Freedom of Information Law for records that may ordinarily be withheld. Specifically, you referred to requests made by the Office of Child Protective Services, a unit of the County Department of Social Services, for records that may be withheld from the public under the Freedom of Information Law.

In this regard, as you are aware, the Freedom of Information Law 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. Additionally, when records are accessible under the Freedom of Information Law, they are equally available to any person, regardless of one’s status or interest [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 contrast, I do not believe that a request by a County agency seeking records in the performance of its official governmental duties can be equated or should be treated in the same manner as a request made by a member of the public under the Freedom of Information Law. As as a general matter, the Freedom of Information Law is permissive. Stated differently, even though an agency, such as a unit of local government may withhold records in accordance with the grounds for denial listed in §87(2), it is not required to do so [see Capital Newspapers v. Burns, 109 AD2d 92, aff’d 67 NY2d 562 (1986)]. Therefore, even though records requested under the Freedom of Information Law might justifiably be withheld from a member of the public, the same considerations need not apply when a request is made by a government agency attempting to carry out its governmental duties.

The only circumstance in my view in which an agency, such as the City of Niagara Falls Police Department, could not disclose would involve those instances in which a statute other than the Freedom of Information Law prohibits disclosure. Pertinent would be §87(2(a), which involves records that are "specifically exempted from disclosure by state or federal statute." For example, if a request involves records concerning the arrest of a juvenile, §784 of the Family Court Act would prohibit the Department from disclosing, absent a court order; similarly, when charges are dismissed in favor of an accused and sealed pursuant to §160.50 of the Criminal Procedure Law, the Department would be prohibited from disclosing.

When records requested by a government agency may be withheld from the public under the Freedom of Information Law, but you believe that disclosure would enhance that agency’s functions, I believe that you/your Department may choose to disclose the records. It is suggested, however, that you encourage the agency seeking the records in that circumstance to indicate that its request is not being made pursuant to the Freedom of Information Law, but rather in the performance of its official duties. Alternatively, your agency could choose to disclose, with a notation or cover letter indicating that the records ordinarily would be withheld from the public under the Freedom of Information Law, but that your agency is disclosing because the request was clearly made by a governmental entity in the performance of its official duties. By so doing, the Department would be enhancing the ability of the agency seeking records in performing its duties, but avoiding creating a precedent or the appearance of a precedent that might suggest that the records are available to any member of the public under the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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