July 17, 2007


TO: Concerned Person

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.

Dear Concerned Person:

I have received your letter in which you asked whether agencies are required to make records available to “otherwise acceptable requesters who do not divulge their identity.”

In this regard, by way of background, 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.

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 name of an applicant or his/her use of the records are irrelevant.

The only instance in my view in which a person seeking records must indicate his/her identity would involve a request for records pertaining to him/herself that would be accessible only to the subject of the record, and which could be withheld from others on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” [see §§87(2)(b) and 89(2)(b) and (c)].

Lastly, I note that a new provision, §89(3)(b), pertains to requests for and the transmission of records by means of email. That being so, records are frequently made available through use of an email address, and the actual name of the applicant is often not known.

I hope that I have been of assistance.