April 15, 2002

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 requested an opinion on the availability of your "tape recorded Tier III hearing record", and various facility library logs that would indicate the users of the library.

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.

Second, the Freedom of Information Law pertains to existing records. Section 89(3) of the Law states in part that an agency need not create a record in a response to a request. It is also important to note, however, that §86(4) of the Law defines the term "record" 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."

Based upon the language quoted above, if information is maintained in some physical form, it would constitute a "record" subject to rights of access conferred by the Law.

If a "tape recorded Tier III hearing record" exists, in my view, it would be available to you. None of the grounds for denying the record would appear to applicable.

In regards to your request for various facility library logs, pertinent with respect to materials identifying patrons is §87(2)(a), which relates to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §4509 of the Civil Practice Law and Rules, which states that:

"Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transaction, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute."

Based on the foregoing, insofar as library records identify users of a library's services, I believe that the records must be withheld. Further, even if §4509 does not apply, I believe that records identifiable to the users of a library could be withheld on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §87(2)(b)].

I hope that I have been of assistance.


David Treacy
Assistant Director