March 5, 1998
Mr. Arthur Springer
150 W. 80th Street -4A
New York, NY 10024
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.
Dear Mr. Springer:
I have received a copy of your letter of February 5 addressed to Rosa
Gil, Chair of the New York City Health and Hospitals Corporation, on which
you asked that I "treat this as a direct complaint."
You asked that Ms. Gil "waive all Freedom of Information Law
procedures and fees and make available to [you] all documents distributed to
the public and the members of the HHC board of directors at a joint meeting
on Wednesday 14 January 1998 of the boards Strategic Planning and
Managed Care Oversight committees meeting on a so-called 'Community
In this regard, I am unaware of the contents of the documents in
question or the extent to which any of the grounds for denial appearing in
§87(2) of the Freedom of Information Law might be pertinent. However, if
indeed the documents were disclosed at the meeting to members of the public,
persons with no relationship to the Corporation different from yours, I believe
that they must be disclosed, for the prior public disclosure would constitute
a waiver of the ability to deny access to other members of the public. While
it has been held that an erroneous or inadvertent disclosure does not create a
right of access on the part of the public [see McGraw-Edison v. Williams, 509
NYS 2d 285 (1986)], the disclosure, as you described it, was apparently
purposeful and intentional rather than inadvertent. If that is so, even though
there may have been a basis for withholding prior to a public reading of the
record, that activity in my view precludes the Corporation from withholding
any portion of the documentation that was disclosed.
Because the meeting occurred nearly two months ago and the records
in question might have been filed, perhaps in a number of locations, it would
not be unreasonable in my opinion for the Corporation in such a circumstance
to require adherence to its general procedures for implementation of the
Freedom of Information Law (i.e., requiring that a request be made in
writing). On the other hand, if multiple copies of the documentation have
been made and distributed to others, I believe that you and any others should
be accorded like treatment in response to requests.
I hope that I have been of assistance.
Robert J. Freeman
cc: Rosa Gil, Chair