April 24, 2007

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, unless otherwise indicated.


As you know, I have received a variety of materials from you relating to your efforts in obtaining a certificate of occupancy from the Town of Riverhead, as well as various records sought pursuant to the Freedom of Information Law. You also asked that I “investigate” the matter.

In this regard, the primary function of the Committee on Open Government involves providing advice and opinions pertaining to the Freedom of Information Law. The Committee has neither the resources nor the jurisdiction to conduct investigations. Nevertheless, in an effort to offer guidance and assistance, I offer the following comments.

First, it is emphasized that the Freedom of Information Law pertains to existing records, and that §89(3) states in part that an agency is not required to create a record in response to a request. Insofar as the Town does not maintain records of your interest, it would not be required to prepare new records on your behalf. I note that when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search." If you consider it worthwhile to do so, you could seek such a certification.

Second, when seeking records under the Freedom of Information Law, your interest, intended use or motivation for seeking them are irrelevant. It was held more than three decades ago that when records are accessible pursuant to the Freedom of Information Law, they must be made equally available to any person, without regard to one’s status or interest [see Burke v. Yudelson, 368 NYS2d 779, aff’d 51 AD2d 673, 378 NYS2d 164 (1976)]. Moreover, as stated by the state’s highest court, the Court of Appeals, in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules (CPLR). Specifically, it was found 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 governmental 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” [see Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would not, in my opinion, affect either the rights of the public or a litigant under the Freedom of Information Law.

Third, you indicated during a telephone conversation that a Town building inspector permitted you to inspect certain records, but precluded you from copying them. Based on the introductory language of §87(2), when records are available for inspection, they must also be available for copying. Additionally, §89(3) requires that an agency make copies of records available upon payment of the requisite fee.

Next, 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.

There are several instances in which you were denied access to records, such as permits, certificates of occupancy and those indicating violations. In response to those requests, you were informed that the records “are exempt from disclosure pursuant to §87(2)(b) and (e)(i)”; reference was also made to §89(2). In short, I disagree with the Town’s denial of access to those kind of records.

Section 87(2)(b) authorizes an agency to withhold records when disclosure would constitute “an unwarranted invasion of personal privacy.” Section 89(2) offers a series of examples of unwarranted invasions of personal privacy. From my perspective, records in the nature of permits, certificates of occupancy and violations cannot justifiably be withheld based on a contention that disclosure would result in an unwarranted invasion of personal privacy. In considering that standard, the Court of Appeals referred to items of a highly personal or intimate nature the disclosure of which would be offensive to a reasonable person or ordinary sensibilities [see Hanig v. NYS Department of Motor Vehicles, 79 NY2d 106 (1992)]. In my view, permits, licenses and certificates of occupancy relate to structures; they do not contain intimate personal information. Further, when they are issued, disclosure enables the public to know that there is compliance with applicable laws, codes or rules.

When a violation has been found, a record indicating such funding represents a government agency’s determination that there has been a failure to comply with law. Records reflective of failures to comply with law have long been accessible, and the Court of Appeals has determined that those records must be disclosed, unless and until a charge has been dismissed [see Johnson Newspapers Corp. v. Stainkamp, 94 AD2d 825, 61 NY2d 958 (1984); also Planned Parenthood of Westchester, Inc. v. Town Board of Town of Greenburgh, 587 NYS2d 461 (1992)].

Section 87(2)(e)(i) authorizes an agency to withhold records “compiled for law enforcement purposes” insofar as disclosure would “interfere with law enforcement investigations or judicial proceedings...” It was held under the Freedom of Information Law as originally enacted that the predecessor to §87(2)(e) could not properly be asserted with respect to records relating to building code enforcement [see Young v. Town of Huntington, 388 NYS2d 978 (1976)]. Further, once a notice of violation has been issued, even if such record could be characterized as having been “compiled for law enforcement purposes”, because the notice would have been served upon the violator, I do not believe that it could be demonstrated that disclosure would interfere with an investigation or judicial proceeding.

Lastly, and in a related vein, although the courts are not subject to the Freedom of Information Law [see definition of “agency”, §86(3), and “judiciary”, §86(1), respectively], records maintained by courts are generally accessible pursuant to other provisions of law (see e.g., Judiciary Law, §255; Uniform Justice Court Act, §2019-a). Again, unless records have been sealed pursuant to §§160.50 or 160.55 of the Criminal Procedure Law, the records of your interest maintained by a court would appear to be available from the clerk of a court. Moreover, if the Town has duplicates of those records, the Court of Appeals has held that they become agency records that fall withing the coverage of the Freedom of Information Law [see Newsday v. Empire State Development Corporation, 98 NY2d 359, 746 NYS2d 855 (2002)].

I hope that I have been of assistance.


Robert J. Freeman
Executive Director

cc: Town Board
Dawn Thomas
Kathleen Schroeher