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January 4, 1994

 

 

M.J. Dowden, Chairman
Village Residents Party
P.O. Box 105
Brookville, LI, NY 11545

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,
unless otherwise indicated.

Dear Mr. Dowden:

I have received your letter of December 10 and the materials
attached to it, as well as related correspondence sent by the
Village Attorney for the Village of Brookville.

The correspondence indicates that you requested various
records from the Village on November 8, including minutes of a
meeting of the Board of Trustees and documents appended to the
minutes, financial statements, treasurer's reports and motions
concerning Village elections. On November 17, the Clerk/Treasurer
responded, stating that he had been "directed by the Mayor to
refuse your request..." In response to an appeal to the Board of
Trustees, Robert Kops, the Village Attorney, wrote that it is the
Board's "understanding that you do not reside in the Village of
Brookville" but rather in the State of Virginia. He added that
"[s]uch being the case the supplying of the documents you request
would be '...an unwarranted invasion of personal privacy...' of our
taxpaying citizens". Based upon the foregoing and the Board's
belief that "your request does not comply with the intent of the
law", was "not made in good faith and only constitutes another form
of harassment", the appeal was denied.

You have sought my views on the matter and advice "on how to
proceed."

In this regard, I offer the following comments.

First, 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 (i) of the Law.

Nothing in any response by Village officials refers to any of
the grounds for denial. Further, from my perspective, the kinds of
records that you requested, i.e., minutes of meetings, a
municipality's financial statements, and motions made during open
meetings, are clearly accessible. In short, as I understand the
nature of the records sought, none of the grounds for denial of
access could appropriately be asserted.

Second, it has been held that when records are accessible
under the Freedom of Information Law, they must be made equally
available to any person, without regard to one's status or interest
[see Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75
(1984); Burke v. Yudelson, 51 AD 2d 673 (1976); Duncan v. Bradford
Central School District, 394 NY 2d 362 (1976)]. Based upon the
language of the Freedom of Information Law and its judicial
interpretation, whether you reside in Brookville or the State of
Virginia, whether you are a citizen or an alien, whether you seek
the records for personal reasons, in good faith or otherwise, I
believe that you have the right to obtain records accessible under
the Law. Further, while I am unaware of your motivation, your
legal residence or your intended use of the records, it is noted
that the Court of Appeals has stated that "[t]he potential for
abuse through FOIL is in a sense a price of open government, and
should not be invoked to undermine the statute" (Farbman, supra,
82).

Third, it is emphasized that the courts have consistently
interpreted the Freedom of Information Law in a manner that fosters
maximum access. As stated by the Court of Appeals:

"To be sure, the balance is presumptively
struck in favor of disclosure, but in eight
specific, narrowly constructed instances where
the governmental agency convincingly
demonstrates its need, disclosure will not be
ordered (Public Officers Law, section 87, subd
2). Thus, the agency does not have carte
blanche to withhold any information it
pleases. Rather, it is required to articulate
particularized and specific justification and,
if necessary, submit the requested materials
to the courts for in camera inspection, to
exempt its records from disclosure (see Church
of Scientology of N.Y. v. State of New York,
46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of
one of these statutory exemptions may
disclosure be withheld" [Fink v. Lefkowitz, 47
NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held
that:

"Exemptions are to be narrowly construed to
provide maximum access, and the agency seeking
to prevent disclosure carries the burden of
demonstrating that the requested material
falls squarely within a FOIL exemption by
articulating a particularized and specific
justification for denying access" [Capital
Newspapers v. Burns, 67 NY 2d 562, 566 (1986);
see also, Farbman & Sons v. New York City,
supra,; and Fink, supra].

Moreover, in the same decision, in a statement regarding the intent
and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this
State's strong commitment to open government
and public accountability and imposes a broad
standard of disclosure upon the State and its
agencies (see, Matter of Farbman & Sons v New
York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance
of the public's vested and inherent 'right to
know', affords all citizens the means to
obtain information concerning the day-to-day
functioning of State and local government thus
providing the electorate with sufficient
information 'to make intelligent, informed
choices with respect to both the direction and
scope of governmental activities' and with an
effective tool for exposing waste, negligence
and abuse on the part of government officers"
(id., 565-566).

Lastly, when a request is denied access following an appeal,
an applicant may seek judicial review of the denial by initiating
a judicial proceeding under Article 78 of the Civil Practice Law
and Rules. It is noted when such a proceeding is brought under the
Freedom of Information Law, the agency has the burden of proof.
Further, a court may award attorney's fees, payable by an agency,
in certain circumstances. Specifically, §89(4)(c) of the Freedom
of Information Law states that:

"The court in such a proceeding may assess,
against such agency involved, reasonable
attorney's fees and other litigation costs
reasonably incurred by such person in any case
under the provisions of this section in which
such person has substantially prevailed,
provided, that such attorney's fees and
litigation costs may be recovered only where
the court finds that:

i. the record involved was, in fact, of
clearly significant interest to the general
public: and

ii. the agency lacked a reasonable basis in
law for withholding the record."

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to Village officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Trustees
Jean Pailet, Clerk/Treasurer
Robert D. Kops, Village Attorney