August 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.
This is in response to your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to your former employer, the Department of Environmental Conservation. Specifically, you sought many records pertaining to the Fulton City Dump. You indicated, however, that the Commission on Public Integrity has issued an informal opinion, advising that, pursuant to Public Officers Law 73(8), you are prohibited from representing named individuals with respect to various remediation and closure issues related to the Fulton City Dump. In response to your request, the Department indicated that it would process your request upon receipt of a certification that you are not representing those named individuals in relation to causes of action that pertain to the remediation and closure of the Dump.
We are not aware of any provision of law that an agency could cite to deny access to records pending submission of a certification that an applicant for records is acting on his/her own or as a representative of a client. In this regard, we offer the following comments.
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.
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 NY 2d 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 NY2d 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 our opinion irrelevant in terms of the agency s responsibility to respond to the request pursuant to the Freedom of Information Law. In short, with one exception that does not apply here [see 89(3)(a) concerning requests for lists of names and addressed], if records are required to be made available under the Freedom of Information Law, the agency has no authority to require the applicant to explain his/her status or interest.
When an agency has reason to suspect that a person has acted in contravention of a lifetime bar under the Public Officers Law, it may be appropriate for the agency to inform the Commission on Public Integrity. However, we believe that, regardless of the Commission s response, the agency remains required to respond to the request in keeping with the provisions of the Freedom of Information Law.
On behalf of the Committee on Open Government, we hope that this is helpful to you.
Camille S. Jobin-Davis
cc: Ruth Earl
Barry Ginsberg, Acting Executive Director