March 17, 2006

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 sought my opinion concerning a proposed resolution to be considered by the Milan Town Board concerning the "Application of FOIL to Town Board Members." From my perspective, the resolution is unnecessary, for it limits the exercise of common sense and discretion. Further, there are elements of the resolution that may be contrary to law. In this regard, I offer the following comments.

First, in my view, the Freedom of Information Law is intended to enable the public to request and obtain accessible records. It has been held that accessible records should be made equally available to any person, without regard to status or interest [see e.g., Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman & Sons v. New York City, 62 NY 2d 75 (1984)]. Nevertheless, if it is clear that records are requested in the performance of one's official duties, the request might not be viewed as having been made under the Freedom of Information Law. In such a situation, if a request is reasonable, and in the absence of a rule or policy to the contrary, I believe that a member of the Board or other official should not generally be required to resort to the Freedom of Information Law in order to seek or obtain records.

As you are aware, there are numerous instances in which records are clearly public and readily accessible. In those instances, municipalities often disclose those records routinely and do not require that requests be made in writing. That kind of response is in my opinion fully consistent with statement of legislative intent that appears in §84 of the Freedom of Information Law, directing that state and local government agencies make records available "wherever and whenever feasible." The proposal would remove the flexibility and the ability to exercise judgment, particularly when dealing with records that are, by law, clearly available to the public.

One of the requirements in the proposed local law involves a provision stating that "individual Town Board members shall release no town record to any member of the general public, whether for review or copy, without obtaining a FOIL request, in whatever form, signed by the individual to whom records are released." I believe that there are several problems that relate to that requirement.

If a Board member has obtained records from the Town that are accessible under the Freedom of Information Law, that person, like any other member of the public, may do with the records as he or she sees fit. If that person wants to reproduce and distribute records available under the Freedom of Information Law, I believe that he or she may do so without any restriction or limitation, and in that circumstance, I do not believe that the Board member who obtained the records could be required to have others seek copies in writing.

In a related vein, in brief, when a Board member obtains records, unless the records are prohibited from being disclosed by a statute (an act of Congress or the State Legislature), I know of no provision that would preclude that person from redisclosing the records to a third party.

Lastly, as indicated earlier, it has been held that when records are accessible under the Freedom of Information Law, they are equally available to any person; the identity of a person seeking records is irrelevant when an agency determines rights of access. That being so, the only instance in my opinion in which a person may be required to identify him/herself when requesting records would involve the situation in which a person seeks records pertaining to him/herself that would be available only to that person. In that kind of situation, disclosure to the public at large would constitute "an unwarranted invasion of personal privacy" [see §§87(2)(b) and 89(2)(b)]. Stated differently, reasonable proof of one’s identity may be sought when a person seeks records pertaining to him/herself, and when the records could be withheld from others on the ground that disclosure would result in an unwarranted invasion of that person’s privacy [see §89(2)(c)].

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Town Board