July 20, 2009
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.
I have received your letter in which you sought an advisory opinions involving issues relating to your request made pursuant to the Freedom of Information Law to the City University of New York School of Law.
By way of background, having requested a “certified” copy of a certain contractual agreement, you were informed that, based on “the school’s rules regarding holds on records (Student Handbook, pg. 39), the school cannot furnish copies....until you have resolved two recent holds.” One “hold” pertains to a failure to complete an exit interview relating to financial aid; the other relates to the failure to repay two outstanding loans. You have asked whether the policy concerning “holds” can “preempt FOIL.” You also questioned a portion of the response to the request in which the records access officer wrote that “Section 89(3)(a) does not provide for furnishing certified copies.”
In this regard, I offer the following comments.
First, 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 this instance, I do not believe that any of the grounds for denial of access may properly be asserted, and the Law School’s records access officer has not cited any.
Second, 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)].
In the only judicial decision of which I am aware that relates in same manner to the issue, the court wrote that “[t]he underlying issue involves a dispute over tuition” and that it “appears that the college is withholding the transcript pending payment.” Despite the non-payment of tuition, it was found that “there has been no basis shown by which the defendant can justify withhold the student’s transcript” (Drimadri v. New York Institute of Technology, Supreme Court, New York County, January 26, 1988).
In short, I do not believe that the rule concerning “holds on records” is valid. In my view, only when there is a basis for denying access to records based on one or more of the exceptions to rights appearing in §87(2) of the Freedom of Information Law may an agency do so. That an individual owes money to an agency in relation to an unrelated issue cannot, in my opinion, serve as a means of denying or rejecting a request made under the Freedom of Information Law.
Lastly, §89(3) of the Freedom of Information Law includes reference to what might be characterized as certified copies. When an agency makes a copy of a record, the agency “shall...certify to the correctness of such copy if so requested...” In my view, the certification does not involve as assertion regarding the accuracy of the content of a record, but rather that a copy made available is a true copy.
I hope that I have been of assistance.
Robert J. Freeman
cc: Gregory Koster