November 29, 1994



Mr. Nelson Lynde
Chautauqua County Office of
   the County Executive
Gerace Office Bldg.
Mayville, NY 14757-1007

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 Mr. Lynde:

I have received your letter of October 20 and the correspondence attached to it.

Having reviewed the materials, even though "all information" contained within a particular file has been disclosed to an applicant, that person has sought the same information again. You have asked "when, if ever, ongoing FOIL requests for the same information, which [you] have already provided, can be disregarded."

In this regard, I offer the following comments.

First, nothing in the Freedom of Information Law pertains specifically to repeated requests made by an applicant for records that have already been disclosed. However, in those circumstances, it has been advised that an agency inform the applicant that the records sought have been made available and that ensuing requests for the same items will be considered moot and will not be answered.

Second, the decision rendered in Moore v. Santucci [151 AD 2d 677 (1989)] appears to be relevant to the situation that you described. In Moore, it was found that:

"...if the petitioner or his attorney previously received a copy of the agency record pursuant to an alternative discovery device and currently possesses the copy, a court may uphold an agency's denial of the petitioner's request under the FOIL for a duplicate copy as academic. However, the burden of proof rests with the agency to demonstrate that the petitioner's specific requests are moot. The respondent's burden would be satisfied upon proof that a copy of the requested record was previously furnished to the petitioner or his counsel in the absence of any allegation, in evidentiary form, that the copy was no longer in existence" (id., 678).

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director