FOIL-AO-14815

July 21, 2004

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

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.

Dear

I have received your inquiry in which you referred to the following statement, which has been added by the Town of Marlborough to responses to requests made under the Freedom of Information Law:

"The information provided pursuant to the above stated foil request is information intended only for the use of the individual or entity named above. You are hereby notified that any dissemination, distribution, or distribution of copy of said information whether it be by reports, photographs or nay other documentation to third parties is strictly prohibited."

You have questioned the legality of the statement.

In my view, the prohibition is inconsistent with law and unenforceable.

From my perspective, a person seeking records under the Freedom of Information Law from an agency, such as a town, cannot be compelled, as a condition precedent to disclosure, to indicate the purpose of a request or the intended use of the records, or to promise or agree that that the records will not be duplicated, disseminated, or perhaps placed on the internet. 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, once records are made available under the Freedom of Information Law, I believe that the recipient may do with the records as he or she sees fit.

I note that in a decision rendered in 2001, the Life Insurance Council of New York attempted to bolster a denial of access to certain records maintained by the State Department of Insurance that had long been available to the public because the recipient of the records placed the records on the internet. The court rejected the argument and determined that the records remained accessible and that there was no justifiable reason for prohibiting their placement on the internet [Belth v. New York State Department of Insurance, 733 NYS2d 833].

I hope that I have been of assistance.

RJF:tt

cc: Town Board