December 20, 2004



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.


I have received your letter in which you wrote that you are attempting to obtain "basic information/requirements and guidelines with regard to candidacy in the upcoming local elections for trustees" in the Village of Cedarhurst. You indicated, however, that the Village has refused to respond unless you provide your home address. You have sought clarification of the matter.

In this regard, first, it is noted that the Freedom of Information Law pertains to requests for existing records. That law does not require that government agency officials answer or provide information in response to questions. Similarly, §89(3) states in part that an agency is not required to create or prepare a record in response to a request.

Second, §86(4) defines the term "record" expansively 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."

Therefore, insofar as the Village maintains records containing the information of your interest, those records fall within the coverage of the Freedom of Information Law.

Third, 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.

Lastly, 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), in my opinion, the residence of an applicant or use of the records are irrelevant.

In sum, insofar as the Village maintains records in which you are interested, I believe that they are subject to rights of access, irrespective of your intended use of the records or your address. That being so, I do not believe that the Village may condition disclosure of any such records upon your release of your residence address.

I hope that I have been of assistance.


cc: Board of Trustees
Village Clerk