December 28, 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 information presented in your correspondence.
As you are aware, I have received your letter and the materials attached to it. You have sought an advisory opinion concerning the propriety of “the non-permission...received from Orange County Clerk Donna L. Benson for publication of some nineteenth-century indentures.”
By way of background, correspondence relating to the matter indicates that you prepared information derived from apprenticeship indenture contracts executed by the superintendent of the poor in Orange County early in the nineteenth century. Those records are maintained by and were obtained from the County Clerk’s office, where they are accessible to the general public. In a letter refusing to “permit the publishing of ancient indenture information you acquired” from her office, the County Clerk wrote that:
“Although the agreements are over 100 years old, the subjects of those agreements are children, presumably who were wards of the County at that time, making those records analogous with adoption records. According to Social Services Law Section 372(3) and (6), ‘records and reports pertaining to the placing out, adoption or boarding out of a child’ shall be kept confidential.”
From my perspective, there is no basis for prohibiting you from publishing or using in any way the records that were legally obtained. In this regard, I offer the following comments.
First, as indicated in a letter addressed to you by Dr. James Folts, Head of Reference Services at the State Archives, the records at issue had been public when they were prepared and for many years thereafter. Moreover, the statutes to which the County Clerk referred and preceding provisions from which they were derived were not enacted until or applicable until the twentieth century. That being so, I do not believe that those statutes serve as a bar to disclosure or publication of the records at issue.
Second, viewing the matter from a different perspective, I believe that the documents in question are subject to rights conferred by the Freedom of Information Law. That statute is expansive in its coverage, for it pertains to all agency records, and §86(4) defines the term “record” to mean:
"...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
In consideration of the foregoing, despite their age or function, I believe that the documents constitute “records” falling with the scope of the Freedom of Information Law.
As a general matter, 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 (j) of the Law.
The initial ground for denial, §87(2)(a), pertains to records that “are specifically exempted from disclosure by state or federal statute.” For reasons described earlier, I do not believe that any applicable statute would serve to exempt the records at issue from disclosure. Further, although §87(2)(b) authorizes and agency to withhold records when disclosure would result in “an unwarranted invasion of personal privacy,” the subjects of the records have been deceased for many decades and likely in most instances for more than a century. That being so, I do not believe the exception to rights of access involving “unwarranted” invasions of personal privacy could be justified.
Lastly, based on its language and judicial precedent, a person seeking records under the Freedom of Information Law from an agency, such as a county, cannot be compelled, as a condition precedent to disclosure, to indicate the purpose of a request or the intended use of the records, or to promise or agree that the records will not be duplicated, disseminated, or perhaps placed on the internet. As a general matter, when records are accessible under the Freedom of Information Law, it has been held that 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, including the potential for commercial use or the status of the applicant, is in my opinion irrelevant. In short, once records are made available under the Freedom of Information Law, I believe that the recipient may do with the records as he or she sees fit.
I note that in a decision rendered in 2001, the Life Insurance Council of New York attempted to bolster a denial of access to certain records maintained by the State Department of Insurance that had long been available to the public because the recipient of the records placed the records on the internet. The court rejected the argument and determined that the records remained accessible and that there was no justifiable reason for prohibiting their placement on the internet [Belth v. New York State Department of Insurance, 733 NYS2d 833].
In sum, in this instance, because the records are accessible from the County Clerk’s office and were legally obtained, I do not believe that the Clerk may preclude their publication or forbid you in any way from using the records in any manner that you may choose.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Donna L. Benson