November 19, 2009


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.


            We are in receipt of your request for an advisory opinion concerning the application of the Freedom of Information Law to records requested from the Office of Temporary and Disability Assistance (OTDA).  Specifically, you requested records pertaining to a particular individual who received benefits from OTDA, and who then later challenged a reduction in benefits through an Article 78 proceeding, during which OTDA was represented by the Office of the Attorney General.  In response, you received versions of “the fair hearing record” redacted “upon the advice of Counsel’s Office” and were informed that “court submissions were made by the Assistant Attorney General and the relevant litigation file is in the possession of that office and beyond our control.”  In this regard, we offer the following comments:

            First, the Freedom of Information Law is applicable to all agency records, and §86(4) defines the term "record" expansively to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

            In consideration of the language quoted above, documents need not be in the physical possession of an agency to constitute agency records; so long as they are produced, kept or filed for an agency, the courts have held they constitute "agency records", even if they are maintained apart from an agency’s premises.

            It has been found, for example, that records maintained by an attorney retained by an industrial development agency were subject to the Freedom of Information Law, even though an agency did not possess the records and the attorney’s fees were paid by applicants before the agency. The Court determined that the fees were generated in his capacity as counsel to the agency, that the agency was his client, that "he comes under the authority of the Industrial Development Agency" and that, therefore, records of payment in his possession were subject to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

            In a decision rendered by the Court of Appeals, it was found that materials maintained by a corporation providing services pursuant to a contract for a branch of the State University that were kept on behalf of the University constituted "records" falling with the coverage of the Freedom of Information Law. We point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410. 417 (1995)].

            In short, we believe that the “court submissions” and the “relevant litigation file” maintained by the Office of the Attorney General are records of OTDA subject to rights conferred by the Freedom of Information Law, irrespective of their physical location.  As a practical matter, however, it may be more efficient to request the records directly from the Office of the Attorney General or the court in which the matter was adjudicated.

            Second, 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 OTDA constitute agency records that fall within the coverage of the Freedom of Information Law.

            Third, when records 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 our opinion, nothing in the Freedom of Information Law would serve to enable an agency to deny access to that record in whole or in part.

            On behalf of the Committee on Open Government we hope that this is helpful to you.



                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director



cc: Anthony Farmer