November 23, 2005

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.


We are in receipt of your August 31, 2005 and September 27, 2005 requests for advisory opinions concerning the application of the Freedom of Information Law to certain records which you have requested from the Chatauqua County Department of Social Services.

In brief, having attempted to obtain records including notes taken by a County employee, Ms. Gates, during a telephone conversation you had with her, the County denied your request citing confidentiality provisions set forth in Social Services Law §§473-e.

In this regard, we 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.

Second, of relevance to the issue is the first ground for denial, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §473-e of the Social Services Law, which prohibits the release of reports and information obtained in conjunction with such reports from disclosure except to certain persons. Subdivision (2) states in relevant part:

Such reports and information may be made available to: (a) any person who is the subject of the report or such person's authorized representative.

Subdivision (1)(b) defines an "authorized representative" to mean:

(i) a person named in writing by a subject to be a subject's representative for purposes of requesting and receiving records under this article; provided, however, that the subject has contract capacity at the time of the writing or had executed a durable power of attorney at a time when the subject had such capacity, naming the authorized representative as attorney-in-fact, and such document has not been revoked in accordance with applicable law;

(ii) a person appointed by a court, or otherwise authorized in accordance with law to represent or act in the interests of the subject; or

(iii) legal counsel for the subject.

Accordingly, unless you meet the qualifications for an authorized representative under either of these three exceptions, it is our opinion that the County properly denied access to the requested records.

We hope that this helps to clarify the matter.


Camille S. Jobin-Davis
Assistant Director


cc: Mark Thomas