July 29, 1993
Mr. Arthur Marotta
5 Jacquelyn Court
Dix Hills, N.Y. 11746
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 Mr. Marotta:
I have received your letters of July 26 and July 28 in which
you sought assistance concerning a request for records of the Town
The form attached to your initial letter indicates that you
requested contracts between the Town and a particular firm, as well
as permits issued to "excavate and trench" in a certain location.
Because it was assumed that you are a litigant, the request was
denied on the advice of a Town attorney on the ground that the
Freedom of Information Law "may not be used as a substitute for the
discovery techniques provided by the Civil Practice Law & Rules."
You indicated, however, that you are not involved in litigation.
In this regard, I offer the following comments.
First, the pendency of litigation or the possibility that a
person seeking records may be a litigant is largely irrelevant to
considerations of public rights of access under the Freedom of
Information Law. As stated by the State's highest court, the Court
of Appeals, in a case involving a request made under the Freedom of
Information Law by a person involved in litigation against an
agency: "Access to records of a government agency under the
Freedom of Information Law (FOIL) (Public Officers Law, Article 6)
is not affected by the fact that there is pending or potential
litigation between the person making the request and the agency"
[Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78
(1984)]. Similarly, in an earlier decision, the Court of Appeals
determined that "the standing of one who seeks access to records
under the Freedom of Information Law is as a member of the public,
and is neither enhanced...nor restricted...because he is also a
litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY
2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the
distinction between the use of the Freedom of Information Law as
opposed to the use of discovery in Article 31 of the Civil Practice
Law and Rules. Specifically, it was found 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 governmental
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.
"CPLR article 31 proceeds under a different
premise, and serves quite different concerns.
While speaking also of 'full disclosure'
article 31 is plainly more restrictive than
FOIL. Access to records under CPLR depends on
status and need. With goals of promoting both
the ascertainment of truth at trial and the
prompt disposition of actions (Allen v.
Crowell-Collier Pub. Co., 21 NY 2d 403, 407),
discovery is at the outset limited to that
which is 'material and necessary in the
prosecution or defense of an action'" [see
Farbman, supra, at 80].
Based upon the foregoing, the pendency of litigation or one's
status as a litigant in my opinion would have no effect upon a
person's rights as a member of the public when seeking records
under the Freedom of Information Law.
Second, 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 section 87(2)(a) through (i) of the Law. From
my perspective, contracts into which the Town has entered and
permits issued by the Town should be disclosed. In short, the
grounds for withholding records are limited, and none in my view
could justifiably be asserted to withhold the records sought.
As you requested and in an effort to enhance compliance with
and understanding of the Freedom of Information Law, copies of this
opinion will be forwarded to Town officials.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Mr. Camelerie
Gary Field, Esq.