April 16, 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, unless otherwise indicated.
I have received your letter and the correspondence attached to it. You have requested an advisory opinion concerning the propriety of a response to a your request for records by the Nassau County Police Department in which you were informed that certain police reports were being withheld due to the pendency of an investigation, but that upon its completion, you could resubmit a request. When doing so, you were informed that you "will need an original notarized authorization from an involved party."
In this regard, as a general matter, 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 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" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 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 my opinion irrelevant. In short, when records are available under the Freedom of Information Law, they are accessible to any member of the public, and an agency, in my opinion, cannot require that permission from an "involved party", notarized or otherwise, be submitted as a condition precedent to disclosure.
The only instance in which permission or authorization of that kind would be proper would involve a situation in which a record pertaining to an individual could be withheld from the public, but not from that individual, on the ground that disclosure would constitute "an unwarranted invasion of privacy" [see Freedom of Information Law, §§87(2)(b) and 89(2)]. In that kind of situation, §89(2)(c) of the Freedom of Information Law provided that:
"Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy pursuant to paragraphs (a) and (b) of this subdivision...
ii. when the person to whom a record pertains consents in writing to disclosure..."
I note that I received a copy of a determination of an appeal sent to you by the Office of the Nassau County District Attorney which apparently involved a request for records pertaining to incidents that were the subject of your request to the Police Department. The determination by the Assistant District Attorney indicates that the incidents resulted in a trial and a conviction. If that is so, I do not believe that the Police Department may withhold records or portions thereof containing information included within public court records or which were introduced during a public judicial proceeding [see Moore v. Santucci, 151 AD2d 677 (1989)].
In an effort to enhance compliance with and understanding of the Freedom of Information Law, a copy of this response will be sent to the Police Department.
I hope that I have been of assistance.
Robert J. Freeman
cc: Thomas C. Krumpter, Detective Sergeant