August 30, 2004
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 and the correspondence attached to it concerning requests made to the Village of Ossining pursuant to the Freedom of Information Law.
The initial issue involves a situation in which you were informed that the records sought do not exist. In this regard, when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search." If you consider it worthwhile to do so, you could seek such a certification.
As you know, insofar as records exist and are maintained by or for an agency, 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.
With respect to notices of claim, when a record is available in its entirely under the Freedom of Information Law, any person has the right to inspect the record at no charge. However, there are often situations in which some aspects of a record, but not the entire record, may properly be withheld in accordance with the ground for denial appearing in §87(2). In that event, I do not believe that an applicant would have the right to inspect the record. In order to obtain the accessible information, upon payment of the established fee, I believe that the agency would be obliged to disclose those portions of the record after having made appropriate deletions from a copy of the record.
For example, if a notice of claim includes personally identifiable information concerning personal injuries or a medical problem, I do not believe that you would have the right to inspect the record, for those portions, in my view, may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy [see §89(2)(b)(i)]. In short, while portions of the records must be disclosed, others could be withheld, and the Village could seek payment of the requisite fee for photocopies, which could be made available after the deletion of certain details (see Van Ness v. Center for Animal Care and Control and the New York City Department of Health, Supreme Court, New York County, January 28, 1999).
I believe that the other matters raised in your letter have been addressed in previous correspondence.
I hope that I have been of assistance.
Robert J. Freeman
cc: Richard Liens
Mary Ann Roberts