December 28, 2004

I have received your letter addressed as "Dear Representative". It is unclear whether you intended to send it to this office as a copy, or as a request for information.

In this regard, the major function of the Committee on Open Government involves providing advice and opinions pertaining to public access to government information, primarily in relation to the Freedom of Information Law. The Committee does not have custody or control of records generally, and it is not empowered to compel a government agency to grant or deny access to records. In short, I cannot make the information of your interest available to you, because this office does not maintain it. Nevertheless, in an effort to provide guidance, I offer the following comments.

According to your letter, a welfare examiner employed by the Ulster County Department of Social Services "used a bill [you] supplied to her...and called [your] customer..." It is your view that she acted inappropriately, and you requested the "actual words to be documented and supplied to [you] that took place between" the examiner and your customer.

In terms of your rights of access, I point out that the Freedom of Information Law pertains to existing records, and that §89(3) of that law states in relevant part that an agency is not required to create a record in response to a request. If the "actual words" were not reduced to writing and no record containing those words exists, the Freedom of Information Law would not apply.

If, however, a record does exist indicating the conversation between the examiner and your customer, it would appear to be available to you. In brief, 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.

With respect to records maintained by a social services agency, §87(2)(a) of the Freedom of Information Law pertains to records that "are specifically exempted from disclosure by state or federal statute." Several statutes within the Social Services Law prohibit public disclosure of records identifiable to either applicants for or recipients of public assistance (see e.g., Social Services Law, §§136 and 372). In my view, because the records in question are exempted from disclosure to the public, the Freedom of Information Law does not govern rights of access to them; rather, any rights of access would be conferred by the Social Services Law and applicable regulations.

With respect to access by the subject of case files, state regulations, 18 NYCRR §357.3, provide in relevant part that:

"(c) Disclosure to applicant, recipient, or persons acting in his behalf. (1) The case record shall be available for examination at any reasonable time by the applicant or recipient or his authorized representative upon reasonable notice to the local district. The only exceptions to access are:

(i) those materials to which access is governed by separate statutes, such as child welfare, foster care, adoption or child abuse or neglect or any records maintained for the purposes of the Child Care Review Services;

(ii) those materials being maintained separate from public assistance files for purposes of criminal prosecution and referral to the district attorney's office; and

(iii) the county attorney or welfare attorney's files.

(2) Information may be released to a person, a public official, or another social agency from whom the applicant or recipient has requested a particular service when it may properly be assumed that the client has requested the inquirer to act in his behalf and when such information is related to the particular service requested."

Based on the foregoing, if you are the subject of a case file, it is likely that you would have rights of access under the regulations cited above.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Kimberly Schmiedle