January 4, 2010

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 and hope that you will accept my apologies for the delay in response.

            According to your letter, the Oyster Bay Town Clerk indicated during a meeting of the Town Board that the Town, in your words, “does not need to respond to FOIL request that it deems political.”  If you have accurately described the matter, based on the language of the law and the direction provided by the courts, the Clerk is mistaken.

            In this regard, a person seeking records under the Freedom of Information Law from an agency, such as a town, cannot be compelled, as a condition precedent to disclosure, to indicate the purpose of a request or the intended use of the records, or to promise or agree that that the records will not be duplicated, disseminated, or perhaps placed on the internet.  As a general matter, when records are accessible under the Freedom of Information Law, it has been held that they must 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), the use of the records, including the potential for political or commercial use or the status of the applicant, is in my opinion irrelevant.  In short, when records are accessible under the Freedom of Information Law, I believe that the recipient may do with the records as he or she sees fit.

            In an effort to enhance understanding of and compliance with the Freedom of Information Law, copies of this opinion will be sent to the Town Board and the Town Clerk.

            I hope that I have been of assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Town Board
Hon. Steven Labriola