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FOIL-AO-17400

 

                                                                                                October 6, 2008

E-Mail

TO:                 

FROM:            Camille S. Jobin-Davis, Assistant 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 information presented in your correspondence.

Dear

            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the Dutchess County Association for the Prevention of Cruelty to Animals (the Association).  Specifically, you asked whether records generated by humane officers who volunteer for the Association would be required to be made accessible under the law.  In this regard, we offer the following comments.

            Founded in the late 1800s, and established as a not-for-profit corporation in 1960, the Association’s purposes include “to enforce by any and all lawful means all laws of the Legislature of this state which now are, or may hereafter be enacted, or in any wise relating to or affecting animals, and to procure the punishment of any and all violations of such statutes”.  “Significant accounting policies” summarized by an independent auditor in documents maintained on the website of the Charities Bureau of the Attorney General’s Office indicated “The [Association] also provides humane law enforcement in Dutchess County and promotes responsible humane guardianship of companion animals. “

            State laws grant enforcement powers to agents or officers of societies for the prevention of cruelty to animals.  Section 371 of the Agriculture and Markets Law, concerning the powers of peace officers,  provides as follows:

“A constable or police officer must, and any agent or officer of any duly incorporated society for the prevention of cruelty to animals may issue an appearance ticket pursuant to section 150.20 of the criminal procedure law, summon or arrest, and bring before a court or magistrate having any jurisdiction, any person offending against any of the provisions of article twenty-six of the agriculture and markets law.   Any officer or agent of any of said societies may lawfully interfere to prevent the perpetration of any act of cruelty upon any animal in his presence.  Any of said societies may prefer a complaint before any court, tribunal or magistrate having jurisdiction, for the violation of any law relating to or affecting animals and may aid in presenting the law and facts before such court, tribunal or magistrate in any proceeding taken.”

            County Law §654, concerning the deputizing of local police officers or peace officers, provides in relevant part that:

“The sheriff may in his discretion deputize the police officers or peace officers of cities, towns, villages and special districts and agents of societies incorporated for the purpose of prevention of cruelty to animals, for the purpose of authorizing an arrest without a warrant outside the territorial limits of such city, town, village or special district, when such crime or infraction was committed within such territorial limits in the presence of such officer.”

            Further, §2.10 of the Criminal Procedure Law, Persons designated as peace officers, states that:

“Notwithstanding the provisions of any general, special or local law or charter to the contrary, only the following persons shall have the powers of, and shall be peace officers: ...
7.  Officers or agents of a duly incorporated society for the prevention of cruelty to animals.”        

            In short, agents and officers of the Association, if deputized by the county sheriff, would have the power to enforce laws regarding the prevention of cruelty to animals.  The language of these statutes is clear, for only those with the governmental authority to enforce the laws may do so.

            The Freedom of Information Law pertains to all agency records, and §86(4) defines the term “record” to include

"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."

            Accordingly, when humane society agents are deputized by the county’s sheriff, and authorized to enforce laws, the records that they prepare or require in that capacity are, in our opinion, county records that fall within the coverage of the Freedom of Information Law. 

            If we can assume that the above conclusion is accurate, 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.  In other words, access to records that you request would depend on the contents thereof.

            On behalf of the Committee on Open Government, we hope that this is helpful to you. 

 

CSJ:jm

cc: Dutchess County Association for the Prevention of Cruelty to Animals