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FOIL-AO-16401

January 11, 2007

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

I have received your inquiry concerning “instances in which an individual has been presented with retaliation charges stemming from filing a FOIL request.” You offered an example in which “employee A” is accused of harassment by “employee B”, and employee A submits a request for records pertaining to employee B pursuant to the Freedom of Information Law. Thereafter, the employer “files a retaliation charge against employee A based on employee A’s FOIL request.”

In this regard, I am unaware of any situation in which charges have been filed against a person for requesting records pursuant to the Freedom of Information Law. Further, based on a decision by the Court of Appeals, the state’s highest court, the motivation of a person seeking records is irrelevant. The Court determined 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.

In short, records may be available or deniable in whole or in part, not based on the interest, intended use or motivation of the person seeking them, but rather based on the provisions of §87(2) of the Freedom of Information Law. That provision reflects that statute’s presumption of access, directing that all agency records be made available, except those records or portions thereof that fall within one or more of the grounds for denial of access appearing in paragraphs (a) through (j).

Lastly, while I am not an expert on the subject, I would conjecture that the initiation of a retaliation charge due to the assertion of the right to request and obtain records under the Freedom of Information Law might give rise to a valid cause of action under the federal Civil Rights Act.

I hope that I have been of assistance.

RJF:tt