September 14, 2006



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 information presented in your correspondence.


I have received your letter in which you requested an advisory opinion concerning rights of access to certain records.

Specifically, you asked whether records reflective of criminal and civil litigation initiated by the New York City Department of Social Services against recipients of public assistance are accessible under the Freedom of Information Law. You wrote that you are "researching cases in which recipients allegedly defrauded or misled the government by obtaining Medicaid or other public assistance benefits after failing to disclose true financial assets." You added that you are particularly interested in obtaining "the names and addresses of the defendants/recipients - and dollar amounts owed..."

In this regard, first, 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 (j) of the Law.

Relevant is the first ground for denial of access, §87(2)(a) which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute, §136 of the Social Services Law, states that: "the names and addresses of applicants for or recipients of public assistance care" are exempt from disclosure, "except as expressly permitted by subdivision four..." Similarly, subdivision (2) states in part that:

"All communications and information relating to a person receiving public assistance or care obtained by any social services official, service officer, or employee in the course of his or her work shall be considered confidential...except as otherwise provided in this section..."

Subdivision (4), which is pertinent to the matter, states in relevant part that:

"Nothing in this or the other subdivisions of this section shall be deemed to prohibit bona fide news media from disseminating news, in the ordinary course of their lawful business, relating to the identity of persons charged with the commission of crimes or offenses involving their application for or receipt of public assistance and care, including the names and addresses of such applicants..."

As I understand the foregoing, while records pertaining to persons who have applied for or have received public assistance are confidential, except when the records relate "to the identity of persons charged with the commission of crimes or offenses involving their application for or receipt of public assistance and care..."

Second, as you may be aware, the Freedom of Information Law is applicable to agency records, and §86(3) defines the term "agency" to include:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

In turn, §86(1) defines the term "judiciary" to mean:

"the courts of the state, including any municipal or district court, whether or not of record."

Based on the provisions quoted above, the courts are not subject to the Freedom of Information Law. This is not to suggest that court records are not generally available to the public, for other provisions of law often grant broad public access to those records. In the context of your inquiry, if you are able to locate court records relating to litigation involving allegations of fraud against applicants for or recipients of public assistance, I believe that they would be accessible pursuant to §255 of the Judiciary Law, unless charges were dismissed. In those instances in which charges are dismissed in favor of an accused, the records become sealed pursuant to §160.50 of the Criminal Procedure Law.

Third, assuming that they have not been sealed, it has been determined by the Court of Appeals that court records that come into the possession of an agency are agency records that fall within the scope of the Freedom of Information Law [Newsday v. Empire State Development Corporation, 98 NY2d 359 (2002)]. Therefore, copies of records filed with or maintained by a court that are in possession of the Department of Social Services constitute agency records that fall within the coverage of the Freedom of Information Law.

Lastly, when records have become available from the courts via public judicial proceedings, duplicate records maintained by agencies have been found to be accessible from those agencies pursuant to the Freedom of Information Law, even when the records might ordinarily be withheld under that statute. As stated in Moore v. Santucci:

"...while statements of the petitioner, his codefendants and witnesses obtained by the respondent in the course of preparing a criminal case for trial are generally exempt from disclosure under FOIL (see, Matter of Knight v Gold, 53 AD2d 694, appeal dismissed 43 NY2d 841), once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public" [151 AD2d 677,679 (1989)].

In short, when a record is made available through a public judicial proceeding, unless it is later sealed, in my opinion, nothing in the Freedom of Information Law would serve to enable an agency to deny access to that record.

In consideration of the foregoing, it appears that litigation files containing the information of your interest maintained by the Department of Social Services that have been used in or are accessible from a court are accessible under the Freedom of Information Law.

I hope that I have been of assistance.


cc: Records Access Officer