October 24, 2003
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 asked whether the Upstate Correctional Facility should permit you to review "videotapes [you] purchased through Freedom of Information Law."
You wrote that Mr. Annucci, in response to your appeal of the policy that videotapes may be purchased but not reviewed, indicated that:
"Each facility must determine how and if inmates may view personal videos. Due to the limitations of certain facilities, such viewing is not practical due to security considerations. The Freedom of Information Law (FOIL) does not address your issue directly and, therefore, we must defer to the facility determination."
In this regard, it is noted that 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.
The Freedom of Information Law is applicable to all agency records and §86(4) of that statute defines the term "record" expansively to include:
"...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
While the Freedom of Information Law guarantees access to existing videotapes unless one of the grounds for denial is applicable, in my view, that statute does not guarantee the use of video equipment at your facility.
Analogous to the situation in my view is the decision rendered in Murtha v. Leonard [210 AD 2d 411, 620 NYS 2d 101 (1994)]. In that case, a small village with limited staff, space and facilities adopted rules prohibiting requesters from using their own photocopiers, and it was held that the rules constituted "a valid and rational exercise of the Village's authority under Public Officers Law §87(1)(b)" [id., 102]. In my opinion, the decision was based upon the reasonableness of the rules in view of attendant facts and circumstances. In situations in which a correctional facility does not have sufficient resources to permit the use of video equipment in a non-disruptive manner or if "such viewing is not practical due to security considerations", in my view a restriction regarding the use of the equipment may be reasonable. In such a circumstance, perhaps a copy could be made and sent to your representative, i.e., your attorney, for viewing.
I hope that I have been of assistance.
cc: Anthony J. Annucci