January 17, 1995



Hon. Carole A. Clearwater
Town Clerk
Town of Hyde Park
P.O. Box 311
Hyde Park, NY 12538

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 Ms. Clearwater:

I have received your letter of December 6 and a variety of related materials. In brief, you wrote that the attorney for the Town's insurance carrier "has demanded that he be in control of all information given to the public" concerning a particular case.

In this regard, I offer the following comments.

First, as Town Clerk, you are, by statute, the custodian of all Town records [see Town Law, §30(1)] and the Town's records management officer (Arts and Cultural Affairs Law, §57.23). Moreover, assuming that you have been designated as records access officer by the Town Board, you have been given the duty of coordinating the Town's responses to requests for records. In that role, I believe that you have the authority to determine to grant or deny access to records sought under the Freedom of Information Law.

Second, certainly there is nothing in the Freedom of Information Law or any of the provisions referenced above that would preclude you from communicating with or seeking the advice of an attorney prior to granting or denying access to records. However, from my perspective, decisions to grant or deny access to records are invested in you and other Town officials (i.e., in the event of an appeal of a denial of access), and there is no requirement that you relinquish "control" of records.

Second, 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 (i) of the Law.

The initial ground for denial, §87(2)(a), pertains to records that are "specifically exempted from disclosure by state or federal statute." One such statute is §3101(d) of the Civil Practice Law and Rules, which exempts material prepared for litigation from disclosure. Nevertheless, some of the records sought would apparently have been prepared or acquired in the ordinary course of business, such as minutes of meeting, insurance policies, audits, etc., rather than for any purpose relating to litigation. Further, it has been determined judicially that if records are prepared for multiple purposes, one of which includes eventual use in litigation, §3101(d) does not serve as a basis for withholding records; only when records are prepared solely for litigation can §3101(d) be properly asserted to deny access to records [see e.g., Westchester-Rockland Newspapers v. Mosczydlowski, 58 AD 2d 234 (1977)].

Additionally, as stated by 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. 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.

"CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL. Access to records under CPLR depends on status and need. With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [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.

Lastly, in one item of correspondence from the attorney for the insurance carrier, he wrote that the Freedom of Information Law "provides that an agency shall not disclose information resulting in an unwarranted invasion of personal privacy" and referred to disclosure of residence addresses of current and former town employees. While I agree that home addresses of present and former public employees need not be disclosed [see Freedom of Information Law, §89(7)], I point out that the Freedom of Information Law is permissive. As stated by the Court of Appeals:

"while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY 2d 562, 567 (1986); see also, Buffalo Teachers Federation v. Buffalo Board of Education, 156 Ad 2d 1027 (1990)]."

It is noted that in Buffalo Teachers Federation, it was specifically found that a school district could choose to disclose home addresses of teachers, even though that information could have been withheld.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Brian S. Sokoloff